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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NUMBER:  500/2015

Consolidated with Case Numbers:

501-504/2015.

In the matter between:

MONAGENG ISAAC LEJAGE                                                                             1^ST PLAINTIFF

ELIZABETH MADINKO MOLOANTOA                                                          2^ND PLAINTIFF

MAMIKIE MARIA MASIGO                                                                               3^RD PLAINTIFF

DIKOBA SUZAN BAILE                                                                                       4^TH PLAINTIFF

NNINI JOHANNA MAUTLWA                                                                             5^TH PLAINTIFF

and

MINISTER OF POLICE                                                                                            DEFENDANT

JUDGEMENT

PISTOR AJ.

[1] In this matter five Plaintiffs instituted five different actions against the Minister of Police (Defendant) for the payment of damages pursuant to an alleged unlawful arrest and detention of each of the plaintiffs by a warrant officer in the Police, the latter then acting in the execution of his duties with the Defendant.  The actions were consolidated by an order of this Court and they were then heard as one action.

[2] Defendant admitted that the Plaintiff’s were arrested without a warrant of arrest for the crimes of fraud, attempted theft of cash and trespass.  Defendant relied on the powers provided for in Section 40(1)(b) and (e) of the Criminal Procedure Act, Number 51 of 1977 (the Act).

[3] Pursuant to the latter admission the onus to prove that the arrests were duly and lawfully executed was thus on the Defendant.[1]

[4] In terms of rule 33(4) of the Rules of Court the quantum and merits were separated by agreement between the parties. The quantum stood over whilst the matter proceeded on the merits only. 

[5] Defendant accepted the duty to begin with the leading of evidence and called the arresting officer, Warrant Officer Nkgodi. 

[6] At the close of Defendant’s case the Plaintiff’s applied for absolution from the instance.  I dismissed that application with costs and indicated that my reasons will be given later. 

[7] The Plaintiff then proceeded to call evidence and all five of the Plaintiff’s testified.  They also called an employee of the Batopele branch of the First National Bank.

[8] At the end of the trial the parties indicated that they would file heads of argument in support of their respective cases.

[9] I now have to consider the submissions as well as  the evidence in toto and give judgment on the matter. I revert to my ruling on the application for absolution.

ABSOLUTION.

[10] On my understanding of our law on this aspect, absolution from the instance should not be granted where the onus on an issue is on the Defendant.[2]  The application for absolution could therefore not succeed because of this principle alone.  

[11] In any event, and apart from the latter consideration, I was of the view that absolution had to be refused also on its merits. 

[12] The test for absolution was re-stated as follows in Claude Neon Lights:[3]

“when absolution from the instance is sought at the close of plaintiff's case, the test to be applied is not whether the evidence led by plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff.”

[13] The evidence of warrant officer Nkgodi (Nkgodi) was inter alia to the effect that he had arrested the plaintiffs, then as suspects, because of a complaint that he had received from one Mrs. Kobokwe (the complainant) which complaint was to the effect that the suspects had unlawfully taken control of the cheque book and keys of an early learning centre (the Centre) from her and had issued cheques in the name of the Centre unlawfully. According to Nkgodi he had been given letters of authority which originated from the Master of the High Court on the strength of which the complainant had been appointed to take control of the management of the affairs of the Centre after the death of her late husband who used to be the controlling person of the Centre.

[14] The complaint against the plaintiffs  was further that they had informed the relevant branch of the First National Bank where the account of the Centre was kept, that the complainant’s name should be removed from the Bank’s records as an authorised signatory on behalf of the Centre. This information, according to Nkgodi, was confirmed by an official ( Mrs Kutsoane) in the relevant branch of the Bank where the Centre’s account was conducted. 

[15] On this information Nkgodi maintained that he was entitled to form a reasonable suspicion that the plaintiffs, then as suspects, had committed the offence of fraud and that he was entitled to arrest them.  In reaction to the said information, received by Nkgodi, and according to Nkgodi, the then suspects elected not to give any explanation at all. Nkgodi then concluded that the suspects  should be arrested to secure their court attendance and to stop them from further committing the relevant crimes.

[16] In my view and in the absence of an explanation by the then suspects, Nkgodi was entitled to form such a reasonable suspicion.  At this stage the test implies that if there is room for error, it is better to allow the matter to go to its end rather than to grant absolution.  Credibility plays a very limited role at this stage. 

[17] I was therefore of the view that it cannot be said that a reasonable court, attending to the matter properly could not find in favour of the Defendant.  I therefore dismissed the application for absolution from the instance with costs also on this basis.

THE MERITS. 

[18] All five of the plaintiff’s thereafter testified and they also called the said Bank official, Mrs.Kutsoane.

[19] According to the latter witness she was not working in the relevant Branch of the bank at the relevant time.  She could therefore not have confirmed the allegations of the complainant as Nkgodi had testified. Her evidence in this regard casts serious doubt regarding the credibility of Nkgodi on this aspect of the case. 

[20] The Plaintiffs testified that they had explained to Nkgodi that they were duly elected members of the management committee of the Centre and that they were duly authorised to be in possession of the chequebook and keys to the Centre.  They also explained that, to the knowledge of Nkgodi they (or at least some of them) had small children in respect of which they had responsibilities.  They all had addresses in the area where they stay and had relatives  there.   In short, they maintained that they were no flight risk and that they would have attended any court that they might be called upon to appear in. 

[21] Section 40(1)(b)  of the Act, on which the defendant relies, provides  as follows:

“ 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; “

[22] It has been held[4] that the section provides for four jurisdictional facts namely:

(i) the arrestor must be a peace officer;

(ii) the arrestor must entertain a suspicion;

(iii) the suspicion must be that the suspect (the arrestee) committed an offence referred to in Schedule 1;[5] and

(iv) the suspicion must rest on reasonable grounds.

[23] It has also been held[6] that “an arrest constitutes an interference with the liberty of the individual concerned, and it therefore seems fair and just to require that the person who arrested or caused the arrest of another person should bear the onus of proving that his action was justified in law.” The onus was thus on the defendant to prove that Nkgodi was acting within the boundaries of the said section. That onus was duly accepted by the defendant.

[24] When it comes to an evaluation of the evidence, I find no reason to reject the evidence of the plaintiffs. On the other hand, Nkgodi testified that the suspects committed fraud by inter alia using the cheque book and that they were trespassing on the Centre’s property by using the keys to the buildings of the Centre.  He gave, as part of his reasons for the arrests, the fact that he wanted to bring the suspects to court and to prevent them from continuing with the commission of the said crimes.  However, he has attached the cheque book and the keys in respect of the buildings and having done so it seems to me unlikely that the Plaintiff’s would in any event have been in a position to continue with the alleged commission of the offences.

[25] According to Mrs. Kutsoane she started to work at the relevant Branch of the Bank in October 2014 which is more than five months after Nkgodi had allegedly visited the Bank and spoken to her.  Her evidence casts serious doubt as to the credibility of Nkgodi on this aspect of the case. Consequently, and is so far as there is conflict between the evidence of Nkgodi on the one hand and the evidence of the plaintiffs and Mrs. Kutsoane on the other hand, and in view of the fact that the onus lies with the defendant, I cannot accept the evidence of Lekgodi.

[26] The question that, in my view, has to be answered in the present matter is whether Nkgodi formed his claimed suspicion on reasonable grounds.[7] Bearing in mind the information that he had received from the plaintiffs and the evidence of the bank official to whom I have referred, Nkgodi must have had serious doubt as to whether the evidence of the complainant was correct. More particularly he must have considered the fact that the Plaintiff’s (then as suspects) were members of the management committee of the Centre and their explanation that they were acting in the execution of their duties and powers as members of such committee.  On the basis of such information Nkgodi could not in my view have formed a reasonable suspicion that the Plaintiff’s had committed fraud or any other crime.  In the result it is not necessary for me to consider and decide whether it was required of Nkgodi to also consider the personal and family circumstances of the then suspects.

[27] As I have stated, I cannot find that the evidence of the Plaintiffs and of the said Bank official should be rejected for one or other reason.  Bearing in mind that the onus to prove the lawfulness of the arrest, I cannot find that the Defendant has proved such lawfulness.

[28] In the result I find for the plaintiff’s on the merits of this consolidated action in respect of each of the claims.

COSTS.

[29] In respect of the merits of this consolidated action, there is in my view no reason why the costs should not follow the result.

[30] On 24 April 2015 the plaintiffs filed in respect of each of their respective claims, an application for condonation for their respective failure to serve notice of their intention to institute civil action against the defendant in terms of Section 3 (4) of the Institution of Legal Proceedings Against Certain Organs of State, Act number 40 of 2002.

[31] The applications were not opposed and they were duly granted by Landman J in this court on 23^rd July 2015.  The costs were reserved.

[32] I was requested by the Plaintiffs’ counsel to direct that the costs of the said interlocutory applications should follow the cost order of the successful party on the merits of this matter and consequently that such costs be paid by the Defendant. When Landman J reserved the costs of the said interlocutory applications, he did not state until when such costs shall be reserved. Consequently it would be appropriate for me now to consider the request that I make an order in respect of such costs at this stage of the proceedings. In my view the interlocutory applications were necessitated by the Plaintiffs’ own failure to comply with the relevant statutory provisions in time and I am of the view that in the absence of opposition to the applications for condonation it would be unfair to require of the Defendant to pay the costs of such applications. 

THE ORDER.

[33] In the result I make the following order:

(a)       I direct that the Defendant shall be liable to pay to each of the Plaintiff’s such amount as the Plaintiffs might be able to prove in respect of their damages, suffered consequent upon their unlawful arrest on 1^st April 2014 and their subsequent detention until 3^rd April 2014.

(b)       The costs of the action in respect of the merits of this consolidated action shall be paid by the Defendant. 

(c)        The costs of the applications for condonation, referred to above, shall be paid by the respective Plaintiffs.

                                   

J.H.F. PISTOR.

ACTING JUDGE OF THE HIGH COURT.

 

APPEARANCES

 

DATE OF HEARING                                        :  31 MAY 2017

DATE OF JUDGMENT                                     :  31 AUGUST 2017

APPEARING FOR PLAINTIFF                          : ADV. JHP HATTING

APPEARING FOR DEFENDANT                      : ADV. K CHWARO

ATTORNEYS FOR PLAINTIFF                           :  WJ COETZER

ATTORNEYS FOR DEFENDANT                         :  STATE ATTORNEY

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