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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISON, PRETORIA

Case No: 13342/2013

ANDRE TSELEDI MANALA                                                                Plaintiff

And

MINISTER OF POLICE                                                                    First Defendant

CAPTAIN GT  HOYS                                                                       Second Defendant

CAPTAIN JOSEPH MASHABANE                                                   Third Defendant

CONTABLE A PLAATJIE                                                                  Fourth Defendant

JUDGMENT

SARDIWALLA J:

INTRODUCTION:

1.                    The Plaintiff seeks an order declaring that his arrest, detention and subsequent assault was unlawful.

2.                     The issue before this court is to determine whether the arrest was lawful in terms of the provisions of Section 40 (1)(e). The arrest took place without a warrant in terms of Section 40(1)(b) of the Criminal Procedure  Act 51 of 1977 (CPA).

BACKGROUND:

3.                    On the 12 December 2010, the  Plaintiff  was  arrested  in  Johannesburg· Central in terms of S40 (1)  (b)  of  the  CPA  by  Warrant  Officer  Makoe together with two other South African Police Service Officials whose full particulars are unknown to the Plaintiff and taken to the Johannesburg Central Police Station where the Plaintiff was detained.

4.                    It is common cause between the parties that the Plaintiff was detained from 12 December 2010 until 22 December 2010.

THE PLEADINGS:

5.              The claim is based on unlawful arrest and the onus is therefore on the Defendants to show that the arrest was indeed lawful.

6.              The Plaintiff bears the onus of proving the alleged assault by the members of the First Defendant.

7.              It is common cause that the policemen who were involved in the arrest were acting within the course and scope of their employment as policemen of the South African Police Services.

8.              The Applicant claims to have suffered damages arising from the following:

8.1            Emotional and psychological stress;

8.2             Defamation of his character; and

8.3              Deprivation of his right to freedom.

9.              It was agreed between the parties that the issue of liability be adjudicated separately and therefore this Court is only called upon to decide upon the merits.

10.                  The Defendants filed an amended plea deleting paragraphs  7.2 and 7.3 of its initial plea of suspicion of stolen property and by replacing it with the following:

"7.2 The police officer reasonable suspected the plaintiff of having committed an offence referred to in Schedule 1 Of the Criminal  Procedure Act 51 of 1977 (as amended), namely an attempt  to commit the offence of Robbery, alternatively conspiring to commit an offence if Robbery, further alternatively the offence of inciting  another  to commit the offence of Robbery.

7.3 In the circumstances the arrest was lawful in terms of  section 40(1)(b) of the Criminal Procedure Act."

THE EVIDENCE:

11.                   The Defendants lead the evidence of four witnesses.

Captain Hoys

12.                   Captain Hays is Second Defendant in the present  matter  and testified that he was the investigating officer in both the Johannesburg Robbery and the Silverton possession of stolen property case. That on 12 December he conducted an operation in Pretoria that involved the apprehension of three police officers in connection with the robbery in Harrison street, Johannesburg. He indicated that he was not present at Mr Sibiya's house at the time of th Plaintiff's arrest as he had arrived later. Upon his arrival he  was informed by Warrant Officer Mescht that Warrant Officer  Makoe arrested the Plaintiff for being in possession of a wrist watch and three  men's rings. There was no complaint of an assault at any stage and he was not aware of an assault. He conceded that an arrest statement should have been obtained from Warrant Officer Makoe and that this was not done. He further confirmed that the Plaintiff was not charged with robbery and never appeared in Court on those charges; instead he was charged and appeared in court on charges of possession of stolen property, which charge was later withdrawn.

13.                         In re-examination he was referred to the notice of rights that had been completed which referred to "business robbery" and not possession of stolen property and he inferred that the Plaintiff may have been arrested for the robbery but was uncertain.

Constable Radebe

14.                         Constable Radebe was part of the operation on 12 December 2010 and was tasked with investigating the address of one of the suspects, Kgomosuthu in Atteridgeville. He stated that during his investigation Kgomosuthu implicated one Jackie Mothomogolo who in turn had implicated the Plaintiff as being complicit in the robbery. He indicated that this information was conveyed later that night to Captain Hays.

\Warrant Officer Van Der Mescht

15.                         Mescht testified that he was a part of the operation that was managed by Col. Hays on 12 December 2010. He visited Sibiya's  address  at  Peter's Place in Equestria with Warrant Officer Makoe. He ·confirmed  that  he was not a part of the investigation and was only providing back up. The Plaintiff • arrived on the scene with Sibiya's keys and there was some discussion regarding the watch that the Plaintiff was wearing. An argument broke out between Sibiya and the Plaintiff which led to the Plaintiff being placed in handcuffs to restrain him. Therefore, he was not officially  arrested  at that time.

16.                         During cross-examination the witness averred that the Plaintiff was not informed of the reason for his arrest nor was he notified of his rights. The reason for this was that it was not an actual arrest but that the act of the arrest was a measure taken to restrain the Plaintiff only. The witness could not verify of the Plaintiff was in fact arrested later as he was not involved in the case further. He stated that he did not witness any assault nor was he aware of any. No complaint of assault was made to him. He further added that it was unlikely that an assault would have taken place outside the dwelling in full view of the public. He further stated that he informed Col. Hoys of the information when he arrived at the scene later that evening. He was uncertain whether he informed Col. Hoys of the arrest of the Plaintiff as he was of the view that the Plaintiff was being merely restrained and not arrested. Lastly he was of the view that Col. Hoys as  the  investigating officer was tasked with whether or not to arrest the Plaintiff.

Warrant Officer Makoe

17.                         He testified the he participated in the operation conduct by Col. Hoys on 12 December 2010 in connection with a robbery at Harrison Street, Johannesburg. When they arrived at Sibiya's house they were informed by Sibiya that he did not have the keys but that were in possession of the Plaintiff. The Plaintiff was summoned to bring the keys and when he arrived and handed over the keys to Makoe and Mescht. He averred that Sibiya implicated the Plaintiff as one of the accomplices that had fled the scene of the robbery the previous Friday evening. He then indicated that he noticed that the plaintiff was wearing an expensive watch. When he questioned the Plaintiff about the watch the Plaintiff explained that he obtained the watch from Sibiya and an argument ensued between the Plaintiff and Sibiya. The witness confirmed that he arrested the Plaintiff as a means to restrain him  for safety reasons. The witness then later alleged that he arrested the Plaintiff on suspicion of stolen property and a main charge of robbery. The witness denied assaulting the Plaintiff or anyone else. He also denied being the person that placed a glove over the Plaintiff's head.

18.                        In cross-examination the witness was unable  to provide  an explanation as to why he suspected that the watch that the Plaintiff was wearing was stolen save for the fact the case involved a robbery of a jewellery store. He confirmed that he did not know whether the watch was in deed a stolen item and took no steps to ascertain same. The witness was also unable  to explain why he did not inform Col. Hoys of his arrest of the Plaintiff when he arrived at the ·scene. He added that he did note the arrest of the Plaintiff in his pocket book but that he was secured as evidence in another investigation.

Plaintiff

19.                        The Plaintiff testified that he was summoned to Sibiya's residence in Equestria on 12 December 2010 where was accused of being complicit in a robbery. He indicated that Sibiya was present at the scene and was taken into the house and he later heard shouting. After some time Sibiya emerged wet from the house. There was a total of four officers, one remained with Sibiya whilst the other three approached him. He testified that one of the officers pulled his arms, whilst a shorter officer kicked him in the stomach  and the last officer tried to pull a glove over his head which during the struggle eventually tore. He indicated that he did not know the identities  of his assailants but that he would be able to identify them if he saw  them again. There were discrepancies in this regard as the Particulars of Claim cited names whilst the Plaintiff in his testimony was adamant that he did not know the names of the individuals except for the fact that they were police officials.

20.                   During cross-examination the Plaintiff was interrogated about  his  failure to lay charges of assault against the individuals immediately but elected to  do so after a period of 10 months. The Plaintiff failed to provide  a reason  why the assault was not mentioned in his warning statement or to the complaints directorate. However the assault was  corroborated  by Sibiya who also indicated that he was assaulted and witnessed the Plaintiff being kicked in the stomach and a glove being pulled over his head.

The Plaintiff's argument

21.               Counsel on behalf of the Plaintiff persisted with inter alia the following arguments:

16.1              The State failed to prove that the arrest was lawful and justified;

16.2             The arresting officer bears the onus of establishing the jurisdictional facts;

16.3             The Plaintiff was never charged with robbery and was only charged with possession of stolen property, which was later withdrawn;

16.4              The alleged offense committed by the Plaintiff is in dispute;

16.5              The contradictory evidence by the Defendants of the events including denial of the assault of the Plaintiff by Sibiya; and

16.6             Due to the Plaintiff being in the employ of the First Defendant he may have required time to reconcile himself as to whether or not to proceed with the assault charges.

The Defendant's argument

17.             Counsel for the Defendants cautioned the court to appreciate the following:

17.1            A peace officer is entitled to arrest without a warrant  on the basis that it is reasonable to identify the suspect's involvement;

17.2              One does not require concrete evidence to establish that an offence has been committed;

17.3             There is only a suspicion required, not proof beyond a reasonable doubt;

17.4             The Plaintiff was implicated by other suspects during their investigation

ANALYSIS AND FINDINGS:

18.                  Section 40(1) of the CPA gives peace officers extraordinary powers to arrest. Thus the circumstances surrounding when such arrests are made must be considered carefully otherwise such arrests are considered to be unlawful.

19.                 

In Duncan v Minister of Law and Order [1], the Court established that jurisdictional fact must exist before such power can be exercised namely:

a.                 the arrester must be a peace officer;

b.                 the peace officer must entertain a suspicion;

c.                 it must be a suspicion that the arrestee committed a schedule 1 offence;

d.                 the suspicion must rest on reasonable grounds.

20.               Once these jurisdictional facts are present a discretion arises whether to arrest  or  not.  Such discretion  must be exercised  in good  faith,  rationally and not arbitrarily. This is an objective enquiry with relation to the facts of Minister of Safety and Security v Sekhoto and Another [2]

21.              Reasonable grounds are interpreted objectively and must be of such a nature that a reasonable person would have had a suspicion[3]

22.             The arrestor's grounds must be reasonable from an objective point of view. When the peace officer has an initial suspicion, steps have to be taken to have it confirmed in order to make it a "reasonable" suspicion before the arrest is made.

23.             This test was succinctly summarized in Mabona v Minister of Law and Order [4] where it was established that what is required is suspicion and not certainty. Such suspicion must make sense otherwise it is frivolous or arbitrary and not reasonable.

24.             There must be evidence that the arresting officer formed a suspicion which is objectively sustainablei[5]

25.             In Tsose v Minister of Justice[6] it was emphasized that the arrest must be with the intention of bringing the arrestees before Court. An arrest can take place lawfully, where the arrestor objectively speaking, has a reasonable suspicion against the suspect but has to conduct further investigations after the arrest before finally deciding to charge the arrestee.

26.                  Arrests can therefore take place even if the arrester realised that at the  time of the arrest he does not have sufficient proof for a conviction[7]

27.                 It should be noted that the events subsequent to the arrests do not have  any bearing upon whether their suspicion was reasonable. Therefore, this Court will not deal with the evidence pertaining thereto.

28.                  The crux of the dispute between the parties is what offense the Plaintiff committed that led to his arrested. It was agreed that in the event  that  this Court finds that the arrest of the Plaintiff was unlawful that the subsequent detention would also be rendered unlawful. Lastly this Court is tasked with determining whether or not the Plaintiff was in fact assaulted as alleged.

Obiective test

29.                 This test was set out in the Mabona matter supra. The test  of whether the suspicion is reasonably entertained within the meaning of section 40(1)(b) of the CPA is objective. The enquiry is therefore - would a reasonable man in the particular Defendant's position who possessed the same  information, have considered that there were good and sufficient grounds for suspecting that the Plaintiffs were guilty of the offence for which he sought to arrest the Plaintiff?

30.                In evaluating such 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 personal liberty. It was held that;

"The reasonable man will therefore analyse and assess the Quality of the information at his disposal critically and will not accept  it lightly or without checking  it where it can be checked. It is only after an examination of this kind that he will al/ow himself to entertain a suspicion which will justify  an arrest. This is not to say that the information at his disposal must be of a sufficiently high quality and cogency to engender in him a conviction that the suspect is in fact guilty. The section requires suspicion and not certainty. However the suspicion must be based upon solid grounds ... " (my underlining [8].

31.                 In applying the test objectively the conduct of the police officer prior to effecting the arrest therefore must be closely examined.

32.                 It is apparent that after the arrest of the other suspects the Plaintiff was implicated by Sibiya as being complicit in the robbery, however upon the Plaintiff's arrival at Sibiya's house, Warrant Officer Makoe did not inform the Plaintiff that he was implicated in the robbery by Sibiya or that he was being arrested on that harge, he however only questioned him about the wrist watch that he was wearing and three gold rings. The Plaintiff  offered an explanation  of how he came to be in possession of those items, in that they were given to him by Sibiya. Therefore, although the Plaintiff was implicated by  other suspects there is no evidence to suggest that his arrest was affected on his association with the offense of robbery. The Defendants  initial plea was  that the Plaintiff was suspected of being in possession of stolen property and later changed the offense to that of robbery in its amended plea. It is also  established that despite its amended plea of robbery that the  Plaintiff  was never charged for robbery in respect of the operation conducted by Col. Hoys and never appeared in Court on this charge.

33.                 Moreover I find it significant to note the testimony of Warrant Officer  Mescht who was strongly of the opinion that there was no actual arrest explained that the reason for placing of the Plaintiff in handcuffs was merely as a means to restrain him. This was re-iterated by the arresting Officer Warrant Officer Makoe who stated that due to the argument that broke out between the Plaintiff and Sibiya it was necessary to restrain him. There is  no evidence before this Court that the Plaintiff was informed of his arrest  or for the reason  of his arrest. The· arresting Officer Makoe also failed to explain why he failed to inform the investigating Officer Col. Hoys who was in charge of the operation of arresting those associated with the robbery that he had arrested the Plaintiff. Col and no arrest statement was obtained. Col. Hays was only informed of the Plaintiff arrest by Warrant Officer Mescht on being that of possession of stolen property. The evidence is clear that the reasoning of the arrest and the offense committed is unclear. Warrant Officer Makoe no took further steps to ascertain his suspicion by ascertaining whether the Plaintiff obtained the items  from Sibiya as alleged. On such information it was not reasonable for  Warrant Officer Makoe to have arrested the Plaintiff under Section 40 (1) (e)  of the  CPA, which he is lawfully allowed to do as a peace officer unless it was apparent that to release him would be futile to their investigation  of  the  robbery. If that version was to be accepted as reasonably possibly true, then Warrant Officer would have informed Col.Hays who was leading the investigating team and an arrest statement would have been secured. However even if this version were presented to the Court, this Court finds that  the version would still stand to be rejected as the Plaintiff was never charged with robbery and only possession of stolen property. There was and can be no  doubt that there was no valid reason for the arrest.

34.                Was the information of the robbery sufficient to establish that reasonable grounds existed to form the suspicion?

35.               There is no evidence before this court as to whether a proper investigation process was followed or not. The Plaintiff submits that his implication by the other suspects of his association with the offenses stands to be rejected as the Plaintiff was never charged with that offense. There is also no other proof that he committed the offense of being in stolen property as the charge was later withdrawn and therefore his arrest was wrongful. I am inclined to accept the version of the Plaintiff as the Defendants have proffered four contradictory versions of the events that gave rise to Plaintiff arrest to this Court. These versions were clearly lacking in detail and contradicted each other in many material respects. It is significant to point out at this stage that the Plaintiff version was corroborated by both Sibiya and Warrant Officer Mescht.

37.                  The Defendants have further failed provided clear and concise reasons as to why the Plaintiff was arrested or identify the offense that the arrest was actually related to.

38.                 Having regard to the evidence before this Court and in light of the aforesaid authorities, I am satisfied that a reasonable suspicion was not  established. There was definitely more that was required by Warrant Officer  Makoe in  light of the fact that the Defendants relied on the testimony of other suspects to form the Plaintiff's association to either offense. Warrant Officer Makoe also failed to explain on what grounds he reasonably believed the items in the possession of the Plaintiff to have been stolen. To the contrary he conceded under cross­ examination that he took no further  steps to ascertain  whether  the items were in fact stolen goods that were connected to the robbery at Harrison Street. Surely this was a critical question in his evaluation of affecting an arrest in· terms of Section 40 (1) (e) in order to sustain his suspicion has reasonable.

39.               The suspicion had to be based on solid grounds. He was expected to make certain enquiries and investigate the accuracy of the information before acting upon it which I am not satisfied that the Defendants did in fact do. Harms DP in

 the Sekhoto[9] supra at 327b-c held that:

"once the required jurisdictional facts are present, the discretion or not to arrest arise. Peace officers were entitled to exercise this discretion as they saw fit, provided they stayed within the bounds of rationality. The standard was not breached because an officer exercised the discretion in a manner other than that deemed  optimal  by the Court. The standard  was not perfection, or even the optimum, judged from the vantage of hindsight, and, as long as the choice made fell within the range of rationality, the standard was not breached".

40.                Consequently this Court is not convinced that the arrest was lawful if one has regard to the conduct of Warrant Officer Makoe and the varying versions of what offense the Plaintiff committed. The Defendants may have had the requisite knowledge of the Plaintiff's alleged involvement in the associated offences but failed to analyse the information accordingly prior to arresting the Plaintiff in order to sustain the rationality of the arrest.

41.                 This Court further had regard to the fact that Warrant Officer Makoe rationale for the arrest was that it was an act done in order to restrain the Plaintiff, this was corroborated by Warrant Officer Mescht that the arrest was not intended as an actual arrest of the Plaintiff. His actions cannot be proven to have been reasonable or rational.

43.               It is trite law and as Harms DP in the Sekhofo matter at page 333  succinctly held that,

"if a defendant wishes to rely on s40(I)(b) defence, he has to plead the four jurisdictional facts. This requires that the facts on  which  the  defence  is  based must be set out. "

44.             This Court is therefore satisfied that the pleadings lacked the jurisdictional requirements and the facts supporting thereto.

Onus

45.             It is well established principle that the onus rests on the arresting officer to prove the lawfulness of the arrest. In this case the Warrant Officer Makoe has failed to adequately show that he exercised his suspicion reasonably and that it met the jurisdictional requirements[10].Moreover this Court is aware that arrests without warrants are not always made upon written affidavits. In certain cases, police officers rely on oral testimony. What  was crucial is what  had they done to establish that solid grounds existed for the suspicion and there is no  evidence before this Court to suggest that there existed  a  reasonable suspicion.

CONCLUSION:

46.               This Court's finding therefore is that the Defendants have not satisfied  this Court on a balance of probabilities that the arrest was lawful  or even based upon Section 40(1) (e) of the CPA or any other related charge. As such it was agreed that if this Court finds that the arrest was unlawful that the subsequent detention of the Plaintiff would also be unlawful, which this Court is satisfied has also been proven. This Court is however not satisfied that the Plaintiff has proven that on a balance  of probability specifically in light of the fact that there existed no reason why he did not report an assault to the Investigating Officer Col. Hoys upon his arrival or included this in his warning statement. In reaching this conclusion this Court is also mindful that Warrant Officer Mescht indicated that as the Plaintiff stated that the assault occurred  outside the dwelling, this was unlikely as he did not witness any assault.  Warrant Officer Mescht was present at the scene  until  Col.Heys arrived. This Court has finds Warrant Officer Mescht to have been a credible and reliable witness whose testimony was corroborated by other witnesses. There is no evidence before this Court to refute his version that no assault has taken place. Accordingly, this Court is satisfied that although the arrest and detention was unlawful that there was no assault of the Plaintiff.

ORDER:

47.           The following order is therefore made:

1.             The defence of lawful arrest is dismissed;

2.             The defence of detention is dismissed;

3.            The Plaintiff is entitled to such damages as he may be able to prove he sustained due to the unlawful arrest and detention by the Defendants.

CM SARDIWALLA

JUDGE OF THE HIGH COURT

APPEARANCES

Plaintiffs' Counsel                                      Adv J Moller

Plaintiffs' Attorneys                                    Makafola & Verster Incorporated

Defendants' Counsel                                  Adv T Ramahlala

Defendants' Attorneys                                State attorney Pretoria

DATE OF HEARING                                   19 March 2019

DATE OF JUDGMENT                                12 August 2020

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