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IN THE HIGH COURT OF SOUTH AFRICA

(LIMPOPO LOCAL DIVISION, THOHOYANDOU)

 

CASE NUMBER: 452/2019

REPORTABLE: YES/NO

OF INTEREST TO OTHERS JUDGES: YES/NO

Date: 08/02/2024

BF GEDEDGER AJ

 

In the matter between:
THOMANI JOHANNES KHUBANA	Plaintiff
and
MINISTER OF POLICE	Defendant

 

JUDGMENT

 

GEDEDGER AJ:

 

[1]             This is a claim for damages arising from the arrest and detention of the Plaintiff.

 

[2]             At the commencement of the trial the parties alerted the court to the fact that the parties had agreed at the Pre-Trial Conference (in terms of Rule 37 of the Uniform Rules of Court) there was an agreement to separate merits from quantum. In the results the trial only proceeded on the issue of merits only.

 

[3]             THE PLAINTIFF'S CASE

 

[3.1]  In his particulars, the Plaintiff pleaded that he was arrested on 07 November 2018, at the Thohoyandou Police Station by Captain Tshifularo without a warrant of arrest, for allegedly having committed offences of fraud, theft and possession of suspected stolen property.

 

[3.2] It was·the case of the Plaintiff that the alleged offences were not commit on the date of the arrest and neither they were committed in the presence of Captain Tshifularo.

 

[3.3] The Plaintiff alleged that Captain Tshifuralo acted maliciously in carrying out the arrest and subsequent detention. To that effect, he pleaded that there was no reason for his arrest as he had given reasonable explanation; yet Captain Tshifularo proceeded to handcuff and effect the arrest.

 

[3.4] Subsequent the arrest the Plaintiff alleged further that he was detained overnight at the Thohoyandou Police Station and the following day he was taken to the Thohoyandou Magistrate's Court and he was released from detention without making any appearance in court because the prosecution had refused to enrol the matter for lack of evidence.

 

[4]            THE DEFENDANT'S CASE

 

[4.1] The Defendant raised three Special Pleas, namely, non-compliance with Sections 3, 4 and 5 of the Institution of Legal Proceedings Against Certain Organs of State, Act 40 of 2002. These were no longer in issue by the time that trial commenced.

 

[4.2]  In his Plea, the Defendant denied that the arrest was unlawful and further pleaded that the arrest was lawful.

 

[5]             THE PLAINTIFF'S TESTIMONY

 

[5.1]  The evidence of the Plaintiff is that on the day in question he received a call from Captain Tshifularo, who asked him to come to the Thohoyandou Police Station.

 

[5.2] Upon receiving the call the Plaintiff contacted Adv Mulaudzi to accompany him to the police station where he met Captain Tshifularo and the complainant, one Mbali Thembakwayo.

 

[5.3]  It is the evidence of the Plaintiff that at the police station he informed Captain Tshifularo that he did not steal the property as alleged but instead he had removed them for safe keeping in the presence of the complainant's security officers.

 

[5.4] He further testified that before the arrest he had requested take Captain Tshifularo to take him to his business premises to show that he did not steal the properties and that he took same for safe keeping because he had disconnected water and electricity and he was afraid that the items would be stolen.

 

[5.5]  It is the testimony of the Plaintiff that Captain Tshifularo was angry and wanted to cuff his hands and legs but instead he grabbed the Plaintiff by his belt, and eventually changed his mind and instead restrained the Plaintiffs hands to his back and cuffed them, with the complainant and others taking photos. (This version was never put to the Captain Tshifularo during his testimony and in fact there are

no photos as alleged).

 

[5.6]  Subsequently, they went to plot 4 and 5 at block "K" Thohoyandou, where the Plaintiffs building is situated and being the place he had rented out, and Adv Mulaudzi followed them. When they arrived they found the Plaintiffs wife already there after she was called by Adv Mulaudzi.

 

[5.7] Mr Khubana testified that he was refused to speak to his wife. However from the testimony he stated that he had requested his wife to open the gate for them.

 

[5.8]  Once at the premises, Captain Tshifularo and Mbali Thembakwayo (the complainant) proceeded to count the goods and found that they were all there.

 

[5.9]  The Plaintiff testified further that Captain Tshifularo asked him to take them to the house wherein he pointed out the items. After having counted the items he was taken back to the van and the items were removed and taken into the van and he did not see which van. He was then taken to the police station.

 

[5.10] He was at the police station from 15H00 until 19H00 where he was kept in a small holding room where he sat on a concrete bench whilst waiting to be formally charged by Captain Tshifularo (as he informed him). He was eventually charged for fraud, theft and possession of suspected stolen property as recorded in the notice of right which was given to me.

 

[5.11] He was subsequently taken to the holding cell where he slept. At 02H00 (in the morning) he was woken by a certain Mr Makhera who came to assist him a ply for bail.

[5.12]  At 02H00 he was woken up by a police officer and he was returned to the cells by the police officer and he remained at the cell until 13H00, when he was taken to Ms Mashudu Nekhumbe's office and there he was told in Tshivenda language:

 

''.A vhana mulandu kha vha tuwe, ri khou shavha u swa nalana zwanda arali ra vha vheya kha witness box."

 

Literally translated: ''You are not guilty you can go, we are afraid to burn our fingers and hands if we do not put you in the witness box,"

 

[5.13] He further testified that he was never taken to court. He then went home where he changed his clothes.

 

[5.14]  The Plaintiff also testified that sometime (meaning some days) after he was released he went back to Ms Nekhumbe (of the NPA) who informed him that his case was referred for a decision.

 

[5.15]  Upon further follow up some days later he was given a document marked annexure "C" being notice dated 01 April 2019, in which the Deputy Director of Public Prosecution declined to prosecute him.

 

[5.16] Under cross examination Mr Khubana admitted that the properties suspected to have been stolen were found in his possession on the day of his arrest.

 

[5.17] Mr Khubana testified under cross examination that he had removed the items for safe keeping because he had switched of water and electricity as the complainant was not paying for such services.

 

[5.18] It was evidence of Mr Khubana under cross examination that the items were not going to be safe as he was going to remove his security guards at the said premises. This evidence was a new version which was never put to the Defendant during his testimony.

 

[6]             THE DEFENDANT'S TESTIMONY

 

[6.1]  Captain Tshifularo testified that on 07 November 2018 he was on duty when he retrieved a priority docket relating to case number THOHOYANDOU  CAS  187/11/2018  [THE  STATE  versus THOMANI JOHANNES KHUBANA] came to him. Upon perusing the docket it became apparent that certain electronic items including amongst others computers, laptops, printers and other electronics were found to have been stolen. I shall hence forth refer to such stolen electronics as stolen or suspected stolen items and/or property.

 

[6.2]  Upon receipt of the docket Captain Tshifularo then proceeded to the scene of crime at Maniini near the R524 road. Once there he found that the cables used to secure the items referred to herein above were cut or disconnected and all the items were removed and not there.

 

[6.3]  He further testified that he noticed that the suspect alleged to have stolen the items was Mr Khubana (the Plaintiff). He then proceeded to call Mr Khubana to inform him about the case opened against him and requested him to come to the police station but Mr Khubana told him that he was not going to come.

 

[6.4]  After he had dropped the call he then went back to the police station where he prepared a statement to apply for a search warrant that would allow the police to search Mr Khubana's business premises and his homestead for such alleged stolen items. The said warrant was only stamped on the 08 November 2018 (the following day) as there was no one to sign for him at the court on the 07 November 2018.

 

[6.5]  He further testified that whilst at the police station, the Plaintiff (Mr Khubana) arrived in the company of Adv Mulaudzi as his legal representative.

 

[6.6] He then introduced himself to Mr Khubana and Adv Mulaudzi and proceeded to inform the Plaintiff about the theft which is alleged to have been committed and for which he was a suspect.

 

[6.7]  He further testified that the Plaintiff told him that he does not know were those items were. Adv Mulaudzi who was accompanying Mr Khubana then advised him to disclose if he indeed he has the alleged items in his possession. This led to altercation between the Plaintiff and Adv Mulaudzi which ended with the Plaintiff threatening to be violent. This led to Captain Tshifuralo causing the Plaintiff to be handcuffed thus to restrain him from carrying out his threats of violence.

 

[6.8] After restraining the Plaintiff, Captain Tshifularo accompanied by other police officers proceeded to Mr Khubana's place of business, using a double cab bakkie with the Plaintiff as a passenger in the cabin.

 

[6.9]  He further testified that the Plaintiff could no longer travel with Adv Mulaudzi (his legal representative) as they were quarrelling and he was threatening him with violence. Instead Adv Mulaudzi followed the group in his own vehicle.

 

[6.10] Upon arriving at the Plaintiffs business premises, the Plaintiff requested that the police team to go to his homestead and the police acceded to the request.

 

[6.11] At his homestead there were two houses, one big house and another one a small house. The Plaintiff directed the police team to the small house. Once there he called out two of his little children (approximately 7/8 years old) to come and see that their father was arrested.

 

[6.12]  The Plaintiff led the police into the small house in the present of Adv Mulaudzi. Inside the small house the police found the items, alleged to have been stolen and bearing the serial numbers which the police compared with the serial numbers appearing on the receipt of the complainant. The complainant was present and attended to identifying such items as his properties.

 

[6.13] He further testified that the police unit from the Local Criminal Record Centre (LCRC) attended to processing the records, collecting exhibits of items, taking photos, fingers prints and compiling albums of exhibits and the scene of crime.

 

[6.14] After the LCRC has completed their functions he caused the recovered items to be removed and transported to the store room using two single cab bakkies and such items were booked in the SAP13 (Exhibits book) before same could be taken into the store room.

 

[6.15] It was at that time that he took the Plaintiff into custody and thereby effecting the arrest. Subsequent to the arrest and all other administrative functions incidental to the said arrest the Plaintiff was read his notice of rights in terms of the Constitution and he also appended his signature on the notice thus completing the arrest process. At all relevant times Adv Mulaudzi was present.

 

[6.16] He further testified that the Plaintiff subsequently told him that he took those items because he wanted money from the complainant who owed him some money.

 

[6.17] He further testified that at his homestead the Plaintiff directed the security officers in his employment not to answer any question from the police. This was done in the presence of Adv Mulaudzi.

 

[6.18] Captain Tshifularo concluded his evidence by stating that he arrested Mr Khubana for fraud, theft and being in possession of suspected stolen property which the Plaintiff had pointed out at his homestead and after same was verified by the complainant as his properties.

 

CROSS EXAMINATION OF THE ARESTING OFFICER

 

[6.19] It is necessary that I should point out it later came to my attention during the proceedings that the Plaintiff was in attendance at the court when Captain Tshifuralo was testifying and being cross examined.

 

[6.20] During cross examination Captain Tshifularo testified that the complainant's security officers had told the police that they were not there when the Plaintiff removed the alleged stolen properties because they told him that they were threatened with guns by the Plaintiff and his security personnel. The only security officers who were present were tho.se working for the Plaintiff.

 

[6.21] Under cross examination Captain Tshifuralo reiterated that if someone had committed an offence and there is evidence he would arrest such person as he did the Plaintiff.

 

[6.22] Under cross examination he reiterated that he had reasonable suspicion that the Plaintiff had committed the offences of theft in that the items suspected to have been stolen was found at his house, and such items were removed from the complainant's offices without his knowledge or permission.

 

[6.23] He testified further under cross examination that it was the Plaintiff who pointed out the suspected stolen items which were stored at his house (the small house) and some of the cables used to secure (safeguard) the items were cut and others were simply disconnected. This despite the fact that such cables were secured or locked by means of padlocks which required passwords to unlock them.

 

[7]             THE ISSUES TO BE DECIDED

 

[7.1]   At the commencement of the trial the Plaintiff admitted the arrest.

 

[7.2]  The court is accordingly, called upon to determine whether the arrest of the Plaintiff was lawful or not.

 

[8]             THE LEGAL FRAMEWORK .

 

[7.1] Section 12 (a) of the Constitution of the Republic of South Africa provides that every person has a right to freedom and security of his person, which right includes the right not to be deprived of freedom arbitrarily or without a just cause.

 

[7.2]  It is common cause that the arresting officer, Captain Tshifuralo, was a peace officer and has arrested the Plaintiff without a warrant of arrest.

 

[7.3]  At issue is whether the arresting officer had reasonable suspicion to arrest the Plaintiff.

 

[7.4]  Section 40(1) of the Criminal Procedure Act[1] sets out the essential jurisdictional facts that have to be present to justify an arrest without a warrant. Of relevance is that a provides that a peace officer may without warrant arrest any person- (b) whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody; (e) who is found in possession of anything which the peace officer reasonably suspects to be stolen property or property dishonestly obtained, and whom the peace officer reasonably suspects of having committed an offence with respect to such thing.

 

[7.5]     From the above it is clear that:

 

[7.5.1] The arresting officer must be a peace officer;

 

[7.5.2] The arresting officer must entertain a suspicion;

 

[7.5.3] The suspicion must be that the suspect committed an offence referred to in Schedule 1;

 

[7.5.4] The suspicion must be that the suspect is found in possession of anything which the peace officer reasonably suspects to be stolen property or property dishonestly obtained; and

 

[7.5.5] The suspicion must be based on reasonable grounds.

 

[7.6] In Biyela v Minister of Policel[2], the court affirmed that the test whether a suspicion is reasonable, is objectively justiciable. At paragraph [34) Musi AJA said

 

"The standard of a reasonable suspicion is very low. The reasonable suspicion must be more than a hunch; it should be not be an unparticularised suspicion. 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 arrest harboured a reasonable suspicion that the arrested person committed a Schedule 1 offence".

 

[7.7] Counsel for the Defendant submitted that they were now only pursuing the requirements of Section 40(1)(b) and (e) that is, the arresting officer reasonably suspected the Plaintiff of having committed an offence referred to in Schedule 1, and that the Plaintiff was found in posses ion properties which the arresting officer reasonably suspected to be stolen property.

 

[7.8] On the other hand, Counsel for the Plaintiff submitted that the arresting officer failed to follow up on the reasonable explanation made by the Plaintiff at the police station to the effect that he did not steal the items in question.

 

[7.9]  The question that remains to be answered is whether the arresting officer effected the arrest when he attended to handcuffing the Plaintiff at the police station?

 

[7.10] In this regard, counsel for the Defendant submitted that the handcuffing was effected to restrain the threatening violent behavior of the Plaintiff. This is consistent with the testimony of the arresting

officer.

 

[7.11] The submission above was not disputed and in fact the Plaintiff had an opportunity to call Adv Mulaudzi as a witness to help him rebut same but he failed to do so.

 

[7.12]  In the result I have no reason to not accept the explanation proffered by the Defendant in this regard.

 

[7.13] Counsel for the Plaintiff contended that the fact that he did not first seek permission of the complainant when he caused the items to be removed does not mean that he committed the offence of theft.

 

[7.14]  Such contention by the cannot hold because the Plaintiff did not only remove the items without the consent of the complainant but he went further to cut and disconnect the cables used to secure the items and even caused same to be stored at his house.

 

[7.15] In fact it the testimony of the arresting officer that at the police station, the Plaintiff denied having knowledge of the whereabouts of the said items. This denial caused altercation between the Plaintiff and his legal representative, Adv Mulaudzi.

 

[7.16] Counsel for the Plaintiff also submitted that the arresting officer's failure to familiarize himself with the facts of the case did not give him a chance to form a reasonable suspicion and the police officer failed to approach the case objectively. Furthermore, that the arresting officer ignored the version that that the Plaintiff did not steal the items but he merely removed them for safekeeping.

 

[7.17] Such contention is not consistent with the evidence in that the Plaintiff failed to notify the complainant about the removal of such items when the principles of natural justice requires him to should have, considering that he testified that he removed the items because he had switched off water and electricity as the complainant owed him some money for such services. I need to point out that such conduct was unlawful and the court cannot under these circumstances condone the unlawful conduct by the Plaintiff.

 

[7.18]  The only reasonable conclusion is that the Plaintiff helped himself to the properties belonging to the complainant without the knowledge of the complainant. Accordingly, the complainant has every reason to assume that his properties were stolen and thereby causing him to report such alleged theft to the police.

 

[7.19] Counsel for the Defendant submitted that the arresting officer premised his arrest on the basis that the Plaintiff first denied having any knowledge of the whereabouts of the items and later same items were found at house, thus being in possession of suspected stolen property.

 

[7.20] A well-established principle of our law is that the onus rests on the arresting officer to prove the lawfulness of the arrest and detention. In Barnard v Minister of Police and Another[3], at [25] the Court held that a police officer should investigate an exculpatory statement offered by a suspect before they can form a reasonable suspicion for the purpose of a lawful arrest.

 

[7.21] In Sandie Biyela v Minister of Police[4] the SCA held at [36] that "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".

 

[7.22] In Mabona and Another v Minister of Law and Order and Others[5] the court held that the reasonable person "will analyse and assess the quality of the information at his disposal critically, and he 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 allow himself to entertain a suspicion which will justify the arrest".

 

[7.23] In all the circumstances that I have mentioned above, it is my view that Captain Tshifularo did have a reasonable suspicion that the Plaintiff had committed the offence for which he was charged and detained.

 

[7.24] It follows therefore that the arrest and detention of the Plaintiff were lawful and the Defendant has discharged the onus on a balance of probabilities that the arrest and detention were justifiable.

 

[7.25]   This should be able to extinguish the Plaintiffs case in this action.

 

[7.26]  I turn now to deal with the question of an appropriate cost order to be made.

 

[7.27] Costs, it is trite, are within the discretion of the court. In exercising that discretion a court takes into account the circumstances of the matter, the issues adjudicated and the results of such adjudication, the conduct of the parties and what would be fair and just between the parties.

 

[7.28] In these circumstances, I consider that it would be appropriate for the costs to be borne by the Plaintiff.

 

ORDER

 

[7.29]   In the result I make the following orders:

 

[7.29.1] The action is dismissed with costs.

 

BF GEDEDGER

Acting Judge of the High Court of South Africa,

Limpopo Local Division, Thohoyandou

 

APPEARANCES:
For the Applicant:	Adv HD Munzhele, with
	Adv SF Mudzunga
Instructed by:	Mphaphuli Mudzunga Tshinetise Attorneys
For the Respondent:	Adv Netshimbupfe with
	Adv Tshisikule
Instructed by:	State Attorney: Thohoyandou

 

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