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IN THE HIGH COURT OF SOUTH AFRICA

LIMPOPO HIGH COURT HELD AT THOHOYANDOU

CASE NUMBER: 080/2013

DATE: 19 FEBRUARY 2014

In the matter between:

THINAVHUYO CONSTANCE PADIMA

And

MINISTER OF POLICE OF THE REPUBLIC OF SOUTH AFRICA

JUDGMENT

TLHAPI J

[1] The Plaintiff instituted action against the defendant resulting from the alleged unlawful arrest and unlawful seizure of goods at the hands of employees of the Defendant who are members of the South African Police service {“SAPS"), stationed at Mphephu Police Station, Thohoyandou.

[2] In paragraph 13 of the Particulars of Claim the following is stated:

The arrest, the search and the detention were wrongful and unlawful because the arresting police officials and all other police officials involved acted negligently and failed in their duties in one or more of the following:

13.1 They arrested and searched the Plaintiff, and further seized her goods without the requisite warrants or without showing the warrants to the Plaintiff despite the Plaintiff’s demand to see and be handed copies thereof;

13.2 At the relevant times thereto, they had no reasonable suspicion that the Plaintiff had or was committing an offence;

13.3 They failed to appreciate the Plaintiffs valid and lawful explanation that the goods found in her possession and control were lawfully in her possession and control;

13.4 They failed to exercise the necessary care and skill when, given the circumstances, they could or should have first ascertained that there were no reasonable lawful grounds or justification to arrest, search and detain the Plaintiff. They could have easily ascertained same by taking of simple investigative steps that no such grounds or justification existed but failed to take such steps;

13.5 They failed to ensure that the Plaintiff was released from detention as soon as possible;

13.6 They failed to ensure that the Plaintiff was not detained without lawful grounds; alternatively, they failed to ensure that the Plaintiff was detained in Police Cell where the Plaintiff would not be exposed to abusive, harsh viljoen and degrading treatment by fellow detainees, as she did; and

13.7 They failed to timeously and formally inform the prosecutors of the lack of lawful grounds for the search, arrest and detention of the Plaintiff or the lack of the requisite evidence for the prosecution of the Plaintiff. Had they done so, as they could and should have done, the prosecutors would have obviously withdrawn the charges as soon as possible.

During the detention, the Plaintiff was unable to work and generates income for herself which she otherwise would have generated income for herself which she otherwise would have generated through her transport services business had she not been arrested and detained

[3] The Defendant pleaded as follows:

AD PARAGRAPHS.......... 13. 13.1. 13.2. 13.3. 13.4, 13.5. 13.6. 13.7 THEREOF

9.1 The contents thereof are denied as is specifically traversed and plaintiff is put to the full proof thereof;

9.2 The defendant pleads further that the plaintiff failed to produce proof of purchase or satisfactory account of her possession of the seized goods on or before 2 July 2012;

9.3 The defendant pleads that the plaintiff produced satisfactory account on or before 2 July 2012, the plaintiff would not have been arrested and detained.

9.4 The plaintiff only produced proof of purchase as aforesaid on 8 November 2012 whereupon charges against her were withdrawn by the public prosecutor;

AD PARAGRAPH 14 THEREOF

The contents thereof are denied and the plaintiff is put to the proof thereof.”

[4] The plaintiff alleged that she suffered damages and seeks compensation in the amount of R400 000.00 set out in the particulars of claims as follows:

R200 000.00 for the unlawful arrest, search and detention;

R100 000.00 for the infringement of dignity;

R 50 000.00 for shock, pain and suffering in detention;

R 48 000,00 for loss of income;

R 2 000.00 for subsistence, fuel and transport spent for her court attendance;

On the basis that an arrest and detention is prima facie wrongful, the Defendant bore the onus to prove the lawfulness of its actions and therefore bore the duty to begin in respect of the unlawful arrest and detention.

[5] Mr Thomas Sinthumule (“Sinthumule") was a captain in the SAPS stationed at Mphephu. He testified that after receiving complaints of a series of housebreaking complaints in the area he arrested three young me on 30 June 2012. One of them was known to him as Peter Moyo who originated from Zimbabwe. Peter Moyo admitted to the housebreakings and from information obtained from him he went to the plaintiffs residence. Peter Moyo accompanied him to the home of the plaintiff because she was the one who used to transport the stolen goods for them to Zimbabwe. On arrival he requested for permission to search the plaintiffs home, she at first refused and denied knowing Peter Moyo and the latter insisted that he knew her. Peter Moyo was not called as a witness and Sinthumule did not know what eventually happened to his case.

[6] The plaintiff later gave consent for her house to be searched. Sinthumule testified that her saw a lot of items which did not look like they belonged to her. Things were scattered around and some good were in old bags. The plaintiff told him that the goods belonged to her customers for delivery by herself to Zimbabwe and she did not have receipts for the goods and he warned her that if she kept no receipts she would lend into trouble. He did not find any exhibits that related to the house robberies that had recently occurred and which he was investigating and he left. The incidents of housebreaking continued after his visit.

[7] He approached the Magistrate because he was not comfortable about the items he had seen at the plaintiff’s home because it was too much and she was not In possession of receipts. He sought advice from the Magistrate on whether or not to charge her. He went back to the plaintiff’s home on 2 July 2012 as he had hoped that he would find her in possession on the receipts. He arrested her on charges of possession of suspected stolen property. She went to Court on 3 July 2012 and he did not further deal with the matter after her first appearance.

[8] The Plaintiff testified that on Saturday the 30 June 2012, Sinthumule arrived at her home in the company of two colleagues. At the door he demanded to search her house and she refused. He pushed her aside and ail three of them entered her home and conducted a search. She did not give the police permission to search her home. She told Sinthumule that she did not know one Peter Moyo and this Peter Moyo was not in the company of the police on that day and had never been to to her home. When the police arrived Sinthumule and his colleagues were travelling in an unmarked vehicle. There was another marked vehicle at the gate which left when the search was conducted.

[9] On Monday the 2 July 2012 she travelled on business in her van to Thohoyandou. Her husband accompanied her. Sinthumule called and requested her to proceed to the Magistrate’s Offices. He took her to the holding cells and made her stand In front of a group of men and enquired of them if they knew her. A young man stood up and said he did not know her. Sinthumele then demanded that they go to her home. He followed her in her van and he was alone. He took the bags of clothing in the garage and loaded them onto his van. She asked for a search warrant and he did not have one. He ordered her to get into his van and promised to bring her back, On arrival at the police station he off loaded the bags placed them in the charge office and ordered the police to lock her up. She never saw him again. She was consequently arrested without a warrant. She attended court on several occasions and on 8 November 2012 the charges against her were withdrawn.

[10] She was later informed by the person who took her finger sprints that she was under arrest for possession of stolen property. Some of the goods taken by Sinthumule belonged to her customers, some were clothing for her children. She called her customers to bring their receipts and they were brought but to the Police Station but Sinthumule was not present. She appeared in court and was released at about 14h30 on 3 July 2012. The goods that were seized were returned to her two days after the matter was withdrawn. The plaintiff was charged in terms of section 36 of the General Law Amendment Act 62 of 1955 for being in possession of goods suspected to be stolen .

[11] The Plaintiff testified that she was locked up with 4 other women and she was traumatized because they kept on asking what she was arrested for. She was afraid of them. She ran towards the door of the ceil and slept there the whole night.

She also explained that she was in the transport business and that she made between R7000.00 -R8000.00 a day. She transported a variety of goods from town to surrounding villages. She denied that she delivered goods as far as Zimbabwe. She only issued receipts to her customers whose goods she retained because she did not do deliveries during the weekend. She did not show the book to Sinthumule because he was harsh and did not ask for it. Although Sinthumule testified about the prevalence of housebreaking in the surrounding areas, in the seven years that she had lived in her village she had not heard of any incident of housebreaking. It was put to her in cross examination that her failure to produce the book from which receipts were issued led to Sinthumule’s reasonable suspicion that the goods were stolen because she had no reasonable explanation for the goods in her possession,

[12] Before an arrest is effected without a warrant it is expected that the jurisdictional requirements as provided for in section 40 of the Criminal Procedure Act 51 of 1977 (“the Act") be satisfied and they being that: (i) the arrestor must be a peace office (ii) he/she must entertain a suspicion (iii) that the suspect committed an offence referred to in schedule 1 to the Act (iv) the suspicion must rest on reasonable grounds, and (v) there must be an absence of reasonable explanation from the suspect.

[13] The plaintiff ‘s charge did not fall within the ambit of schedule 1 of the Act because the plaintiff was not charged with the ‘receipt of suspected stolen property knowing it to have been stolen.’ (my emphasis)

On his own version Sinthumule went to the plaintiff’s home after arresting Peter Moyo. The plaintiff denied that Peter Moyo was at her home with the police. When Sinthumule left the plaintiffs home on the 30 June 2012, he had already satisfied himself that the goods he was in search of, which were connected to the robberies he was investigating and which goods, he was informed were at the plaintiffs residence were not discovered at her place. This meant he conducted a thorough search and he knew what he was looking for. He testified that he accepted her explanation about the goods at her home and he warned her to always keep receipts for the goods in the future to avoid landing into trouble. He was informed that some of the goods belonged to her customer and he did not demand that the receipts be brought to him on that day. As I see it he was satisfied with the explanation given by the plaintiff. Therefore there was no room for a reasonable suspicion on his part two days later.

[14] During cross-examination Sinthumule testified that he had arrested the plaintiff for possession of property which he suspected to be stolen and he effected the arrest on advise of a Magistrate. Sinthumule did not seem to know the difference between the two offences, that is, receiving and possession. It does not look like he understood what jurisdictional requirements had to be present before an arrest could be effected without a warrant. He conceded that the correct charge should have been one of receiving and not possession as stated in the charge sheet. However this concession does not assist at all and his version about the incident of the 2 July 2012 is not acceptable, because he does not seem to recall anything about what preceded the arrest, that is, after the plaintiff on his request reported to the Magistrate’s Court. In my view his conduct should be judged from the occurrences of his investigation on the 30 June 2012.

[15] It is my view, that on this day he satisfied himself that the plaintiff could not be charged with the offence under schedule 1 of the Act. It is also on this date that he satisfied himself that the explanation for the goods in the house was a reasonable one and this after he had conducted a diligent search. At that point he did not insist upon production of the receipts and instead gave advice for the future.

On 2 July 2012 it could only be that he decided to still pursue his investigation regarding Peter Moyo whom he had arrested on 30 June 2012. In all probability Moyo was was among the men in the holding cells at the Magistrate’s Court who were due to appear. The testimony of the plaintiff of what occurred in the cell, that there was an enquiry by Sinthumule to the men who were detained if they knew her, was not disputed. Sinthumule did not recall the events of that day, that is, where it related to him summoning the plaintiff to the Magistrate’s Court. He conceded that he could have obtained a search warrant and a warrant of arrest but he testified that he did not have the time to do so.

[16] It is not disputed that after the incident in the holding cells on 2 July 2012 he followed the plaintiff to her home where he confiscated the goods he had examined on the 30 June 2012 and later ordered her arrest. He did not recall the entire incident except for the fact that he knew that she was detained. It is further not disputed that it was only at the stage when finger prints were taken when she was informed that the charged against her was the of possession suspected stolen property.

It is further not disputed that when her customers arrived on the day of the arrest with the receipts, Sinthumule was not present. In his own evidence her never had contact with her or with the investigation after her arrest.

[17] The plaintiff was cross-examined at length about the receipts that were eventually handed over to the prosecution. The relevance of those receipts at the time of the trial or when the charges were withdrawn is not the issue. As soon as just one of the jurisdictional requirements is found to be lacking at the time of an arrest without a warrant, then the arrest and subsequent detention was unlawful. She testified that she was traumatized by the arrest. Sinthumule had promised to return her to her home and she was persistently questioned in her cells about her arrest, this instilled fear in her and caused her to sleep at the door of the cell away from the other women who were detained in the same cell. The shock pain and suffering she experienced while in custody is in my view related to the psychological trauma she suffered as a result of the arrest and the treatment by these women in the cells, and these should not be dealt with as separate issues. She was detained for about 24hrs and released on the 3 July 2012. I am satisfied that the defendant has failed to prove that the arrest of the plaintiff on the 2 July 2012 was lawful.

[18] I am not satisfied that the plaintiff has made out a case in respect of loss of income and for a claim for damages incurred for subsistence as a result of her court appearances.

[19] In the result the following order is given:

1. The Defendant is ordered to pay to the Plaintiff an amount of R40 000.00 (forty thousand rand) in respect of her unlawful arrest and detention plus interest payable at the rate of 15.5% per annum calculated from the seventh day after judgment to date of full payment;

2. The Defendant Is ordered to pay the Plaintiffs costs of the action;

TLHAPI W

(JUDGE OF THE HIGH COURT)

MATTER HEARD ON 19 FEBRUARY 2014

JUDGMENT RESERVED ON 19 FEBRUARY 2014

ATTORNEYS FOR THE PLAINTIFF TIMBANI MATUMBA ATT

ATTORNEYS FOR THE RESPONDENT STATE ATTORNEY THOHOYANDOU

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