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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION PRETORIA)

 

(1)    REPORTABLE: YES/NO.

(2)    OF INTEREST TO OTHER JUDGES: YES/NO.

(3)    REVISED.

15/10/2020

 

Case No: 54925/2012

 

In the matter of:

 

Marthinus Groenewald                                                                                              Plaintiff

 

And

 

Minister of the Police                                                                                                 Defendant

 

JUDGMENT - LEAVE TO APPEAL

Maumela J.

1.           This is an application for leave to appeal brought by the Minister of the Police, who was the Defendant in a case consisting of an action brought by the erstwhile Plaintiff, Mr. Marthinus Groenewald. In these is proceedings, the erstwhile Defendant shall be referred to as the Applicant, while the erstwhile defendant shall be referred to as the Applicant.

Plaintiff shall be referred to as the Respondent.

2.           The appeal sought to be brought is against the whole of the judgment and order of this Court, including the order as to costs handed down by this court on the 8^th of June 2020. That order read as follows:

"After hearing Counsel for the plaintiff and the defendant, the following Order is hereby made:

2.1.    Judgment is granted in favour of the plaintiff for his unlawful arrest and detention by the defendant.

2.2.    With regard to claim number 2 the defendant shall pay 100% of the plaintiff's proven or agreed damages.

2.3.    The defendant shall pay costs to the plaintiff on an ordinary scale.

The costs shall be paid into the following account:

Bates Attorney (Trust Account Standard Bank

Mid-City Branch

Account Number: [….]

Branch Code:  01-01-45

Reference Number: G0000177"

 

3.           In essence, the court granted judgement in favour of the Respondent based on his unlawful arrest and detention by members of the Applicant. Concerning Claim 2, the Applicant was ordered to pay 100% of the Respondent's proven or agreed damages. The applicant was also ordered to pay costs to the Respondent on an ordinary scale. Leave to appeal is only sought in respect of the First order granted by this Court in respect of the unlawful arrest and detention of the Plaintiff by the members of the Defendant.

 

BACKGROUND.

4.           On the 10^th of February 2010, the Respondent in these proceedings was arrested and detained by members of the Applicant, who was the Defendant before court. Subsequent to the Respondent’s arrest, he appeared before court on the 17^th of February 2010 for a formal application for admittance to bail. The application for bail was initially opposed by the prosecution but on the 18^th of February 2010, the Respondent was granted and released on bail in the amount of R5 000,00.

5.           The criminal matter in relation to which the Respondent had been arrested was considered to be serious. On the 25th of August 2010, the case was transferred from the District court to the Regional Court in terms of section 75(1) of the Criminal Procedure Act. This created the impression that the case is ripe to be heard before the Regional Court. The criminal case was placed on the roll for trial by the prosecution with all the relevant witnesses having been subpoenaed. In the meantime, news about the addressed of the Respondent was published in various publications. The respondent submitted that the publication of his arrest further ruined his good name and reputation.

6.           On the 18^th of March 2012, before the Regional Court, the criminal case that had been brought against the Respondent was provisionally withdrawn by the prosecution. The reason given for the withdrawal of the criminal case was that a witness reneged on her initial statement. It was stated that the state is considering the laying of a charge of perjury against that witness. Inside the Investigation Diary, under Part C on page 31 of the docket pertaining to this case, there was an instruction by the prosecution to the effect that after the retaking of a statement labelled as A17, the police are to submit the docket to the prosecution seven a J175 notice can be issued which would serve as notice for the Respondent to appear before court on warning.

 

GROUNDS OF APPEAL.

7.           The following grounds for the appeal were cited:

7.1.    That the judge erred in ignoring and or failing to consider the relevance and contravention by the Respondent of the Firearms Control Regulations as issued in terms of the Firearms Control Act[1]. The applicant argues that a probable and reasonable suspicion of the commission of an offence/s can be demonstrated, which justifies the arrest.

 

8.           The Applicant makes the point that section 40 (1) (b) of the Criminal Procedure Act sets out circumstances under which an arrest may be effected without a warrant. Section 40(1)(b) reads as follows: "a peace officer may without warrant arrest any person whom he reasonably suspects of having committed an offence referred to in schedule 1 other than the offence of escaping from lawful custody."

9.           The applicable test is that the suspicion on the part of the person effecting the arrest has to be reasonable[2]. In his testimony, Constable Khubeka testified that he was able to form a reasonable suspicion that an offence was committed when the Respondent failed to give him fire-arm licenses pertaining to two firearms which were found in his safe and further when the Respondent could not explain his possession of drugs and suspected stolen property.

 

10.        It was submitted on behalf of the Applicant that the Court should have found that Constable Khubeka was entitled to form an independent and objective opinion that an offence of unlawful possession of firearms or possession of firearms without a license, was committed. It is submitted that have informed such an opinion, the arresting officer was justified in arresting the Respondent without a warrant.

11.        The Applicant points out that under case number A 65/10, in the charge sheet, it is apparent that the Respondent was charged with possession of 'mandrax', cocaine and cannabis which are drugs of various kinds. The arrest of the Respondent was not only limited to the crime of illegal possession of firearms and the alleged suspected stolen goods. It is submitted that the Respondent failed to give a reasonable explanation concerning the source of the drugs and that he attempted to chase the police out of his premises, declaring his hatred for drugs. It was also submitted on behalf of the Applicant that the Respondent should at the least have given a reasonable explanation for the goods and or drugs found at his premises. Constable Khubeka further testified that some of the articles or goods found at the Plaintiff's house appeared to be new and the Plaintiff could not furnish proof of purchase of these items, save to say that they belonged to other people.

12.        The Respondent was alleged not only to be in possession of the firearms in the house but there were firearms which were found at his other properties in the same vicinity, namely in the premises of his employees. Two employees Mr. Haasbroek and Mr. Schutte alleged that the unlicensed firearms found at their premises belonged to the Plaintiff.

13.        It is contended that faced with all these allegations and the statements made by the employees of the Plaintiff, Constable Khubeka had reason and was justified to believe that the Plaintiff committed serious offences in the form of possession of firearms without licenses and possession of drugs and suspected stolen property. The Applicant maintains that the court erred in not finding that the arresting officer had a reasonable suspicion that offences have been committed in circumstances where the Respondent could not produce a licence for a firearm/s found in his possession or under his control.

14.        He testified further, that later on the same day, they went to the house of Mr. Haasbroek, where, after searching the house he found a firearm hidden in the ceiling and Mr. Haasbroek gave a statement stating that the firearm belonged to the Plaintiff and it was given to him for self-defence. He indicated that Mr. Haasbroek did not have a licence to possess the firearm that was found at the house. He testified further that firearms were also found at Mr. Schutte's house. Even those firearms were alleged to belong to the Plaintiff. The Applicant argues that the court erred in placing too high a standard for reasonable suspicion in circumstances where the Respondent could not provide a reasonable explanation of the possession of goods in his possession or under his control. It was submitted that on the basis of the above, the applicant submits that another court, given the same set of evidence shall arrive at a verdict which is different from that arrived at by this court.

15.        Section 17(1) of the Superior Courts Act[3], ("the Superior Courts Act"), regulates applications for leave to appeal. In that regard, this section provides the following:

"(1). Leave to appeal may only be given where the judge or judges concerned are of the opinion that-

(a).(i). the appeal would have a reasonable prospect of success; or

(ii). there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;

(b).   the decision sought on appeal does not fall within the ambit of section 16(2)(a); and

(c).   where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties."

 

PRINCIPLES PERTAINING TO LEAVE TO APPEAL:

16.        Rule 49[4] deals with the purely procedural aspects of appeals against a decision or order from the High Court. The threshold for granting leave to appeal, against the judgment of a High Court, has been raised in terms of the Superior Courts Act[5]. In terms of the former test whether leave to appeal should be granted, whether a reasonable prospect that another court might come to a different conclusion, has been replaced by a measure of certainty, by the use of the word "would", that another could will differ from the court whose judgment is sought to be appealed against[6].

17.        The Applicant contends that it has facts available at its disposal on the basis of which it shall meet the standard and shall demonstrate that another court may arrive at a decision which is different from that arrived at by this court; (court a quo). The applicant submitted therefore that it ought to be granted leave to appeal. It is trite that leave to appeal may only be given if the Judge or Judges are of the opinion that the appeal would have a reasonable prospect of success, or that there are some other compelling reasons why the appeal should be heard.

 

GROUNDS OF APPEAL.

18.        Our law makes provisions which enable police officers under certain conditions to arrest persons who commit certain offences. These offences are listed in the Criminal Procedure Act[7], and its Annexures, namely Section 40 (1)(a) to (p), Section 40 (2) and Annexure 1. An Act may also specify that a person can be arrested for a certain offence.

19.        In this case, the Applicant contends that the arresting officer acted within his powers to arrest in that the officer was of the opinion that the Respondent is in possession of goods that are suspected to have been stolen. The arresting officer also viewed that the Respondent is not able to give a reasonable explanation for such possession. This court has to evaluate the circumstances in which the goods were found, namely in the house of the Respondent, with clamps still attached to some of the goods; suggesting that the items could have been removed from the walls in the house.

20.        Under cross-examination, the Respondent stated that the house was undergoing renovation. This explained why some of the goods were on the floor. Furthermore, none of the goods that were seized by the police from the Respondent's house could be linked to any offence allegedly committed by the Respondent.

21.        Concerning the firearms that were found in the Respondent's possession, the arresting officer obtained information to the effect that the Respondent is in illegal possession of the firearms. Before effecting an arrest, the arresting officer did not strive to obtain first-hand knowledge. The arresting officer testified that he obtained information that there are firearms at the residence of the Respondent. Upon going there, he found the firearms. The Respondent however showed him licences for the firearms.

22.        Concerning firearms for which the Respondent could not produce licenses, the explanation proffered by the Respondent was that the firearms belong to his brother who was overseas at the time. This evidence was given during the bail application which was a few days after the arrest of the Respondent. There is no evidence showing that members of the applicant made efforts to contact the Respondent's brother in order to establish the truthfulness or otherwise of the explanation given by the Respondent concerning those of the firearms for which he could not produce licenses. Within the proceedings of the trial in this case, the arresting officer still contended that he did not see all the licences of the firearm that the Respondent claims to have showed him.

23.        During the application for the, the testimony which the arresting officer gave concerning the firearms found in the position of the Respondent contradicts that which the same arresting officer gave within the trial pertaining to this case. No explanation was preferred for this contradiction. In testifying, the arresting officer did not mention that he asked the Respondent to produce the written permission pertaining to the firearm that was licenced in the name of his brother. The Respondent submits that the arresting officer did not ask for the written permission. It was submitted therefore that the arresting officer could not have had a reasonable suspicion that an offence had been committed because there was nothing in place to arouse his suspicion.

24.        Section 110 (3) of the Firearms Control Regulations, issued in terms of the Firearms Control Act[8], provides the following: “any person convicted of a contravention of or a failure to comply with any provision contained in these regulations may on conviction be sentenced to a fine or to imprisonment for a period not exceeding 12 months or to both such fine and such imprisonment." The Respondent submits that if he did not have the written permission in his possession, then he could be found guilty of regulation 86 4 (a)(i) of the regulations, and be sentenced to a fine or imprisonment. He points out that contravention of regulations of the Firearms Act does not appear in Section 40 (1) (a) to (d), 40 (2) or in Annexure 1. The Applicant submits that this means that a person may not be arrested for contravening these regulations.

25.        The Applicant argues that the information that was received from Schutte and Haasbroek points to a commission of an offence. He contends that this justified the Respondent's continued arrest and detention. However, this information was only obtained after the arrest meaning that the arresting officer did not have it at the time of the arrest. The Respondent submitted that there is no sufficient evidence proving that what was found in his house was a variety of drugs. According to testimony given, the arresting officer did not find it or see the drugs himself. The person who claimed to have found the drugs did not testify. The arresting officer also did not confront the Respondent concerning the items.

26.        The available evidence suggests that the arresting officer did nothing to verify the information that he received. It is trite that an arresting officer must be diligent in assessing the information obtained before forming an opinion to the effect that an offence was committed. This was recently expressed by the Court in the matter of Manala vs Minister of Police and Another[9]. The law requires that the suspicion on the basis of which the arresting officer effect an arrest be reasonable. In the case of Mabona v Minister of Law and Order[10], the court stated that what is required for an arrest without a warrant to be lawful is suspicion and not certainty. The court stated that "such suspicion must make sense, otherwise it is frivolous or arbitrary and not reasonable.”

27.        In this case, the Court found that the arresting officer could not explain the contradictions between his evidence during the bail application and that given during the trial. The Respondent submits that another Court cannot come to a different conclusion and that the application for leave to appeal stands to be dismissed with costs. The arresting officer was the only witness to testify with regards to what happened at the time of the arrest of the Respondent. There is therefore no corroboration for his version pertaining to the events.

28.        The submissions by the applicant, namely, that the withdrawal of the charges against the Respondent was provisional, and that there is a very strong case against the Respondent cannot be supported. It is notable that 10 years have lapsed since the case was withdrawn, and that the state has made no move towards reinstating the charges against the Respondent.

29.        The Respondent submits that the Applicant cannot show that some misdirection took place in the evaluation of the evidence by this Court. It makes the point that the applicant has no reasonable chance of success on appeal and therefore that the application for leave to appeal should not be granted.

30.        The court finds that based on the available evidence in this case, there is not a reasonable chance for the applicant to succeed on appeal. Consequently, the application for leave to appeal stands to be dismissed with costs and the following order is made:

 

ORDER.

30.1.   The application for leave to appeal is dismissed with costs.

 

 

T.A. Maumela.

Judge of the High Court of South Africa.

 

REFERENCES

 

For the Plaintiff:                               Adv. M Mphaga

Instructed by:                                   DPP

 

For the Defendant:                          Adv. HA Geldenhuys

Instructed by:                                  Boteslaw

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