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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(Functioning as LIMPOPO LOCAL DIVISION,

THOHOYANDOU)

CASE NO: 086/10

DATE: 13 AUGUST 2014

In the matter between:

RAMANZI LUFUNOJOHN.......................................................................................................Plaintiff

And

D/INSPECTOR PAUER.....................................................................................................1^st Defendant

STATION COMMISSIONER LOUIS TRICHARDT....................................................2^nd Defendant

MEC OF SAFETY AND SECURITY...............................................................................3^rd Defendant

MINISTER OF POLICE...................................................................................................4^th Defendant

JUDGMENT

PHATUDI J

[1] The plaintiff was arrested by the first defendant, a member of the South African Police Service on the 12 January 2009. The Plaintiff contends that the arrest was unlawful. The Plaintiff alleges to have sustained damages occasioned by the said arrest.

[2] At the commencement of the trial, the parties agreed to separation of quantum from the merits in terms of the Uniform rules of this Court [33(4)]. The issue to be determined is whether the arrest was lawful or not. The defendant, as it being trite, has the onus to prove that the arrest was lawful.

[3] The four (4) witnesses called by the defendants are: the arresting officer, the investigating officer, both being members of SAPS stationed at Makhado SAPS at the time of the arrest. The complainant in the alleged offence was as well led. The last witness to testify is the Regional Public Prosecutor who caused provisional withdrawal of the case against the plaintiff.

[4] In short, the detective Inspector George Pauer, (Pauer), testifies that he was on duty on the 5 January 2009 when they received a call-out on robbery that had been committed at Ayob Motors, situate in Makhado. Accompanied by other officers, they attended Ayob Motors. They were shown a video footage recorded through the CCTV installed at Ayob's premises.

[5] He spotted the plaintiff on the video footage. He saw the plaintiff talking to other men. The said men entered Ayob's Motors office. They robbed Ayob Motors. The said men were seen coming out of the office and again saw the plaintiff speak with the said men. They together moved off the premises.

[6] He testifies that he knew the plaintiff before. The plaintiff is known to him as a person who has tendencies of getting himself involved in the commission of offence in the area. His knowledge of the plaintiff made it easier for him to identify the plaintiff on the video footage.

[7] The employment of police informers was utilised as part of the police investigation. The informers corroborated the plaintiff's involvement in the commission of the offence. This was communicated to him by the said informers. He then reasonably suspected the plaintiff of having committed an offence referred to in Schedule 1. He, based on that suspicion, effected the plaintiff's arrest without a warrant.

[8] Elias Vukeya (Vukeya), the Warrant Officer assigned as an investigating officer, testifies that he received the file to investigate the robbery with aggravating circumstances committed on the 5 January 2009 at Ayob Motors, Makhado. In his investigation, he was given a Compact Disk (CD) that contained the video footage of the day and time robbery was committed. He reviewed the video footage. He identified the plaintiff in the video footage. He handed the video footage to the prosecuting authorities for their preparations for trial. Due to suspension of the prosecutor who was assigned the case, the video footage got lost. To date, the said CD Video footage cannot be traced.

[9] The prosecutor who inherited the file, Mr Hilke Janse Van Rensburg (Janse Van Rensburg) testifies that the CD that recorded the video footage of the scene is untraceable. She impressed the court that the existence of the said CD is endorsed on the docket. She, due to unavailability and untraceable CD with video footage, applied for the provisional withdrawal of the case. She explains the practical consequences of provisional withdrawal. The nolle proseque certificate has not been issued, she says.

[10] The plaintiff testifies in chief that he was arrested for an offence allegedly committed in Musina. He was taken to Musina for identification parade. He was never identified for Musina case. On their return to Makhado, the police refused to release him. The police informed him of being identified in a certain video footage. He states that "Magistrate Linda" instructed the police to get the video footage.

[11] During cross-examination, different versions that created different causa emerged. He states that he claims damages for the unlawful arrest of the Musina case and not that of Makhado. He says he was arrested for Makhado matter while already in custody.

[12] He confuses bail proceedings with the trial of the matter. He further confuses the days or dates on which he was kept in custody. He could not with certainty tell the number of days he spent in custody. He further places a version of having been assaulted by the police. Due to such injuries, the magistrate's courts proceeded with the postponements of his matters in his absence. He painted a corrupted procedure followed by the magistrate. This aspect was never put to any of the witnesses including the prosecutors, Ms Van Rensburg. No re-examination was conducted to rectify the discrepancies that occurred in the plaintiff's version.

[13] The plaintiff's counsel submits that it is commons cause that:

(i) Robbery with aggravating circumstances was committed at Ayob Motors in Makhado on the 5 January 2014.

(ii) On 6 January 2009 Puaer viewed the video footage in which Pauer and Vukeya identified the plaintiff speaking with assailants who committed robbery at Ayob Motors.

(iii)The plaintiff was arrested by Pauer without a warrant of arrest.

[14] Plaintiff counsel submitted that it is in dispute that:

(i) The plaintiff participated in the commission of robbery with aggravating circumstances.

(ii) The suspicion Pauer formulated was not reasonable in that Pauer

(a) knew the plaintiff from other offences in which the plaintiff is allegedly said to have participated in their commission.

[15] Reference is made to a number of decisions that dealt with "ascertainment of the suspicion" prior to effecting arrest.

[16] In rebuttal thereto, the defence counsel relies on the Minister of Safety and Security v Sekhoto 2011(1) SACR 315 fSCA) that deals with jurisdictional facts required for the arrest without warrant of arrest to be lawful.

[17] The key issue to be determined is whether the plaintiff's arrest without a warrant of arrest was in the circumstances justified.

[18] It is trite law that section 40(1) of the Criminal Procedure Act 51 of 1977 provides for an arrest by a peace officer without a warrant of arrest. Of relevance in this case is the provisions of section 40(l)(b). It stipulates.

"(1) a peace officer may without warrant arrest any person

(a) ...

(b) whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody../'

[19] The jurisdictional facts required to be proved are set out in Minister of Safety and Security v Sekhoto 2011 (1) SACR 315 (SCA). The said jurisdictional facts were emphasised by Boshieio JA in Minister of Safety and Security v Swart (194/11) r20121 ZA SCA 16 (22 March 2012) para [171 (unreported) as:

(a) the arresting officer must be a peace officer.

(b) the arresting officer must entertain a suspicion.

(c) the suspicion must be that the suspect (arrestee) committed an offence referred to in Schedule 1 and

(d) the suspicion must be based on reasonable grounds.

(a) The arresting officer must be a peace officer

[20] It is not in dispute that Pauer is a peace officer. He was and still is a member of the South African Police Services. Jurisdictional fact (a) has been met.

(b) The arresting officer must entertain a suspicion

[21] It is further not in dispute that Pauer entertained a suspicion. He attended the scene of the alleged committed robbery with aggravating circumstances. He viewed the video footage that recorded the said action. He identified the plaintiff con municating with other assailants. He then entertained a suspicious that the plaintiff is one of them. This cannot be faulted.

(c) The suspicion must be that the plaintiff committed an offence referred to in Schedule 1.

[22] It is common cause that Pauer identified the plaintiff when viewing the video footage. Upon identifying the plaintiff communicating with the assailants, Pauer, with the discretion conferred upon him by section 40(l)(b) of Criminal Procedure Act, formed a suspicion that the plaintiff is part of the assailants who committed an offence referred to in Schedule 1. (emphasis added).

[23] Plaintiff counsel submitted that the plaintiff cannot be said to have participated in the commission of the offence in that the he stood outside while other assailants went in for the commission of the offence. The Criminal Procedure Act does not confer on the arresting officer to prove beyond reasonable doubt participation of the arrestee. Counsel submission has no merit.

[24] Participation can take place either by actively partaking in the act or in association with the actions of the assailants. It is not required of the peace officer to prove active association of the arrestee. A mere suspicion must be that the plaintiff (arrestee) committed an offence.

[25] Pauer exercised his discretion as conferred in terms of section 40(l)(b) in formulating a suspicious that the Plaintiff is one of the assailants who committed the offence.

[26] The test in formulating the suspicion is an objective one. This implies that a reasonable person in the position of Pauer, confronted with the same set of facts, would form a suspicious that the plaintiff committed the offence set out in Schedule 1.

[27] Pauer's evidence was never disputed but for the unavailability of the C.D upon which the video footage has been recorded. Pauer's identification of the plaintiff is not contested. Put differently, no evidence has been led to rebut his testimony.

[28] Vukeya corroborated Pauer on the plaintiff's identification on the video footage. Vukeya's testimony was as well not rebutted. No evidence of bad blood between, both police officers and the plaintiff has been led. They have no reason to wrongly implicate the plaintiff. There is no evidence to that effect. Considering the unshaken testimonies of both peace officers on their discretion on suspecting the plaintiff, I find no reason to find that a reasonable peace officer confronted with the same set of facts would not have formed the suspicion Pauer formed. The plaintiff committed a schedule 1 offence that warranted him to effect the arrest without a warrant.

[29] The plaintiff was seen communicating with assailants moments before the commission of the offence. I find no evidence to support the contention that Pauer's suspicion is not based on reasonable grounds. The plaintiff was at the scene and captured on CCTV footage.

[30] The suspicion that an arrestee committed an offence does not imply that the arrestee is guilty but simply implies that there is a reasonable suspicion that the arrestee committed the offence.

[31] In my final analysis of the evidence tendered, I am of the view that the defence discharged its onus that the arrest was justified.

[32] It is trite that costs follow the event. The defence succeed with their defence and are thus entitled to their costs.

33.1 The plaintiff's case is dismissed with costs on party and party scale.

AML PHATUDI

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

Date of hearing: 11 and 12 August 2014

Date Judgment delivered: 13 August 2014

AdvMS Sikhwari

Instructed by D.T Mphaphuli Attorneys For the Plaintiff

Adv F Muneri

Instructed by State Attorney, Thohoyandou for the Defendants

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