---

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

RAF 660/2017  

In the matter between:-

MOSES MOSHE MONCHUSI                                                                   PLAINTIFF

And

MINISTER OF POLICE                                                                              DEFENDANT

CIVIL MATTER

KGOELE J

DATE OF HEARING                              :           8 MAY & 13-14 AUGUST 2018

DATE OF JUDGMENT                           :           25 OCTOBER 2018

FOR THE PLAINTIFF                               :         Adv. G I Mothibi

FOR THE DEFENDANT                            :         Adv. E Sithole

JUDGMENT

KGOELE J.

[1]        The plaintiff claims an amount of R500 000-00 as damages from the defendant for his unlawful and wrongful arrest and detention at Tshidilamolomo police station, after an allegation or charge of possession of suspected stolen property and burglary at a certain school were preferred against him.  In his particulars of claim he contends that the unknown members of the South African Police Services (SAPS) who arrested and detained him, were acting within their cause and scope of their employment.

[2]        Both legal representatives of the parties indicated at the beginning of the trial that the merits and quantum were already separated and the matter served before me for merits only.  The arrest and detention of the plaintiff was admitted by the defendant, including the fact that the arrest was without a warrant of arrest.  The only issue that remained in dispute was the wrongfulness and unlawfulness of the arrest.  The defendant pleaded Section 4(1)(b) of the Criminal Procedure Act 51 of 1977 (CPA) and alleged that the plaintiff was arrested because there was a reasonable suspicion that he committed an offence listed under Schedule 1 of the CPA.

[3]        As a result of the fact that the defendant bears the onus to proof the reasonableness and/or unlawfulness of the arrest and detention, they had a duty to begin.

[4]        The first witness called on behalf of the defendant was Constable Boikanyo Richard Tiro (Tiro).  His testimony summarised is as follows:-  He is a police officer at Boschoek police station.  Whilst on duty during the night of the 16 January 2017 he received a report from his sister about some people whom she saw alighting from a black double cab at Ntshidi Middle School.  The sister apparently resides just next to this school which falls under Tshidilamolomo jurisdiction.  Tiro phoned Tshidilamolomo police station after receiving this report to make them aware of what was reported on in their jurisdiction and woke Constable Maruping up.  They together travelled in a car with the aim to attend to the complaint although it was not within their jurisdiction.

[5]        On the way they met a black club cab and when they tried to stop it, it did not.  They made a U-turn and followed it.  Whilst driving following this car, they saw a laptop on the road which they did not see when they initially passed there.  The car they were following eventually stopped.  The plaintiff alighted and indicated upon being asked that they were from Mafikeng heading to Morokweng.  There were four occupants in this car.  After the explanation the plaintiff and his crew were left to proceed with their journey.  Tiro and his colleague also returned back to continue with their journey to Tshidilamolomo.

[6]        When Tiro and his colleague were about to pick the computer that was in the middle of the road, they heard a sound of a car coming from the direction where the black club cab went to.  Tiro realised that the car was approaching them without its lights on.  This prompted him to hide the car they were travelling on in the trees nearby.  When the approaching car reached the point where they had hid themselves together with their car, it switched on its lights and passed them.   He then phoned Sergeant Fani who works at Tshidilamolomo police station to inform him that the black club cab was driving to the direction of Tshidilimolomo.  This is after he realized that it was the same car he initially stopped.  He told Fani that he should stop the car and search it because it has a description of the car that was reported on earlier.

[7]        When they arrived at were Fani and the other police officers were, they found that they had already managed to stop the same car.  The three other occupants were not there, it was only the plaintiff.  During cross-examination he admitted that a club-cab does not fit the description of a double cab and further that the plaintiff was walking with the assistance of crutches on that particular day, although he insisted it was only one.

[8]        He also indicated that at the time they were following this car to Tshidilamolomo, they did not pick the laptop that they saw on the road, and instead left somebody to stay guarding or looking after it.  He also indicated during cross-examination that one Lekwene was arrested when he was picking up this laptop.  He conceded to the fact that this information about Lekwene was hearsay as he was not there when Lekwene was arrested. As far as the arrest of the plaintiff is concerned, he admitted that he was not the one who arrested him although he was present.  Further that, although he was the cause of the arrest, he does not know why Fani arrested the plaintiff.

[9]        When he was re-examined by his Counsel Adv. Sithole, he was asked why he followed the car when they met it for the first time.  He gave a reason that it was because he had mistaken it as a double cab which he received a report on.  When asked if he searched it at that time, he indicated that he did not, because it was not the double cab the report was made on.  He only started to suspect it when this car made a U-turn and drove with its lights off towards where the laptop was.

[10]      The second witness for the defendant was Sergeant Thamsanqa Penhallrisk Fani (Fani), a police officer stationed at Tshidilamolomo.  He testified that on the 16 January 2017 he received a report about a burglary at about 3 o’clock in the morning at a certain school.  Upon arrival at the school and upon investigating the scene of crime he amongst others saw that the door and the burglar door of the school premises was forced opened, things were upside down inside, some school kids Kit were scattered on the floor including bags and other articles.  They were later contacted by Tiro from Boshoek Police Station who informed them that they were chasing a black double cab which according to him was spotted at the school.  They eventually managed to stop this vehicle whereupon they found that the plaintiff was the driver thereof.

[11]      He explained to the plaintiff the reason of stopping him and searching the car.  Upon searching the car he found a crowbar amongst the tools the plaintiff was having and a pair of blue and white socks.  He then formed an opinion that he was linked to the scene he was attending because of the description of the car, the socks and the crowbar which according to him is usually used for housebreaking purposes.  He took him to their police station.  Although he initially indicated that it was for further administrative duties, he later changed and said that he was arresting him for further questioning.  He left him at the police station when he went to look for other suspects.  When he came back he found that the plaintiff was taken out of detention and did not have a clue of how he was released.

[12]      During cross examination he maintained that the car he stopped was a double cab.  He also indicated that he did not prepare a list of what was found in the car at that time.  It was prepared by Tshite but in the presence of the plaintiff.  He admitted that he did not indicate in his statement that he found a crowbar in the car and further that he arrested the plaintiff.  He finally indicated that he arrested the plaintiff on the information he received and also finding him in possession of the things he saw at the school which he could not give a clear answer to.  When asked what does he mean by “clear answer” he said that the plaintiff replied by saying that he does not know anything about the socks.  He also denied having detained him saying he left him under the care of his colleagues.  The defendant closed its case.

[13]      The plaintiff testified that on the day of this incident he was in the company of his nephew Lucas Lekwene and they were returning from Mahikeng where they had visited the father of his nephew.  After the visit they left Mahikeng using the Tshidilamolomo road with the intention to go to Morokweng.  When approaching Mabule his vehicle showed a sign of a red light on the dashboard and he called his motor mechanic friend in Morokweng for advice.  The motor - mechanic told him to wait for some few minutes before proceeding with his journey.  He was also told that should he encounter any problems with the vehicle again, he should contact the same mechanic who had earlier on promised that he will drive to where he was so that this car can be towed to Morokweng.

[14]     They continued with their journey but the same problem arose when they were about to reach Tshidilamolomo.   This time around some smoke was coming out from the dashboard.  He tried to call the motor mechanic but his phone was off.  He continued driving but between Dingateng and Boshoek, they met a police vehicle which was driving in their opposite direction towards Tshidilamolomo.  After passing it, it made a U-turn and signaled to them to stop.  The officers then asked the plaintiff whether he had met one Rasta.   He replied by saying that he does not know the person they were talking about.  He was then told Rasta’s real name and that he resides in Morokweng.  It was then that the plaintiff remembered who this Rasta was but indicated to them that he had not seen him.

[15]      The plaintiff explained himself to the officer as to who he was as the police officer did not recognize him.  He told them the fact that he once worked in the area but was by that time known as Moses Moshe Lekwene.  He indicated that he had to explain himself in this way, because he had since changed from his mother’s surname to Monchusi.  The police then left towards the direction of Tshidilamolomo.  The same mechanical problem started again.   They decided to also make a U-turn so that they get some water at Dingateng in the event the vehicle gives them a problem again.  They managed to get water from a tap at a clinic.  From there they proceeded straight to Tshidilamolomo.  On their way they were suddenly stopped by a police vehicle that had barricaded the road.  Two police officers alighted with their guns pointing at the plaintiff and his nephew.  Out of shock the nephew ran into the forest.  Another police van and a motor vehicle belonging to the community arrived.

[16]      Plaintiff was told that people are sending their kids to school but he steals their computers.  His crutches were thrown behind a police van and he was assaulted.  Members of the community were also begging for his blood.  After some time the police got a call that Lekwene had been arrested.  Plaintiff was then put behind a police vehicle and his vehicle was given to the other members of the community who drove it to where Lekwene was arrested.

[17]      Upon arrival there he saw Lekwene being pinned on the ground and assaulted by other police members.  They were then driven to Tshidilamolomo police station where upon their arrival at the charge office a certain Captain ordered that they be locked up.  The said officer indicated to them that he does not understand how a person with such disability could commit burglary but he is only arresting them because of the instructions of the Station Commander.  They were then put in a holding cell which was filthy with human faces.  The plaintiff complained to the Station Commander that his nephew was badly injured and will need medical attention.  The complaint included the conditions of the place where they were detained.  Nothing was done about their complaint.  The following day they were taken to Mahikeng where Lekwene was held and the plaintiff was taken to Mmabatho Police Station.

[18]      The officer in charge of the cells in Mmabatho refused to detain the plaintiff because of his injuries as well as the fact that he was using crutches.  He was ultimately put in a cell for women which was filthy with sanitary pads.  The following day he was taken to the holding cells of the Magistrate Court and was told at about 15hrs that his case had been withdrawn.

[19]      It is common cause between the parties that plaintiff was arrested without a warrant and detained by members of SAPS on the 16 January 2017 and furthermore, that he was released on 18 January 2017.  It is further common cause that the plaintiff was stopped by Fani when he was driving a black club cab and he was with his nephew who ran away when they were stopped.  Further that, the plaintiff was taken to the Magistrate Court’s offices for the purpose of appearing before the Magistrate and was released after being advised that the Prosecutor declined to place the matter on the roll.  The defendant tendered no evidence to explain the reasons why.

[20]      In terms of section 40(1)(b) of the CPA a peace officer may without a warrant arrest any person whom he reasonably suspect of having committed an offense referred to in Schedule 1.  The jurisdictional facts for a section 40(1)(b) defense are that:-

          20.1    The arrestor must be a peace officer;

           20.2    The arrestor must entertain a suspicion;

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

            20.4    The suspicion must be on reasonable grounds.

[21]      Once the jurisdictional facts for an arrest are present, a discretion arises and the officer is not obliged to effect an arrest.  The discretion must be exercised in good faith, rationally and not arbitrarily with the objective of bringing the suspect to Court.

[22]      In the case of Louw and Another v Minister of Safety and Security 2006 (2) SACR 178 (183-184) it was said that:-

“An arrest without a warrant is a drastic means of initiating a prosecution or securing the suspect’s attendance to Court.  Police officers who purport to act in terms of section 40(1)(b) of the Act should investigate exculpatory explanations offered by the suspect before they can form a reasonable suspicion for a purpose of a lawful arrest”.

[23]      The plaintiff’s case is firstly that, the members of SAPS did not have reasonable grounds for suspecting that an offence was committed as referred to in Schedule 1 of the CPA in particular, Mr Moopelwa, because he was instructed to effect an arrest by Captain Modise and secondly, that he acted arbitrarily in that he did not exercise his discretion at all, alternatively, rationally and properly, as a result the arrest was arbitrary as contemplated by Section 12(1)(a) of the Constitution.  As far as the version of Fani is concerned whereupon he portrayed himself as an arresting officer, the plaintiff’s reply is that there were no reasonable facts from which he could have formed a suspicion that the plaintiff committed an offence even if it can be found by the Court that he was the arresting officer.

[24]      The defendant pleaded specifically that the arrest was lawful because the arresting officer found him in possession of the articles which he reasonably suspected to be stolen property or property dishonestly obtained.  The defendant contends furthermore that he reasonably suspected that the plaintiff committed an offence with respect to such articles, to wit, breaking into the premises with intent to commit theft.

[25]      Alternatively to the above, the defendant alleges that the arresting officer entertained a suspicion that the plaintiff committed an offence listed under Schedule 1 of the CPA, to wit, breaking into premises with intent to commit theft and further that the suspicion rested on reasonable grounds.

[26]      The question this Court has to answer is whether the arresting officer formed a suspicion at all and if he did, whether the suspicion was reasonable or not.  Before this question can be dealt with, from the facts of this case it is clear that it needs to be established first as to who the arresting officer was.  Plaintiff claims that it was Moopelwa and he acted upon instructions of Captain Modise.  The plaintiff based this assertion from the two statements of Moopelwa which were discovered by the defendant.  In his first statement which was marked A10 Moopelwa stated as follows:-

“…. I then acted upon Commander’s instruction to conduct an arrest to the accused suspect mentioned above (A6)”

[27]      A6 is his other statement which was also discovered.  He indicated therein that: 

“under the instructions of Captain Modise and Captain Mabe I was informed to conduct an arrest.  I arrested Moshe Moses Monchusi at Tshidilamolomo SAP for alleged business burglary at Ntshidi Secondary School”    

[28]      The defendant’s version is however, through the evidence in chief of Fani that the arrest was made by Fani.  This is so despite the fact that Fani did not depose to an arrest statement as the police normally do.   In his statement which was discovered, there is no mentioning of the word “arrest” and or that he effected the arrest of the plaintiff.  He could not give a reason for this crucial omission, except to say that he is the one who took the plaintiff from where he stopped him, and because he deprived him of his movements, he was therefore effecting arrest at that time.

[29]      It is important to note that even this answer came up when he was pressed during his examination in chief to answer whether he was effecting an arrest or not.  In his evidence in chief he only mentioned the fact that after explaining to him why he stopped him and asking him about the socks, including telling him about the breaking in at the school, he told him that he was taking him to the police station for administrative duties because their police station works 24 hours.  He never spontaneously and without being prompted for, indicated that he told him that he was arresting him and his rights were explained to him. He only came up with this explanation when he was questioned about this.  His reasons for arresting the plaintiff are noticeably also absent from this statement.  In fact, it is not clear whether it is an arrest statement or not.

[30]      In addition, he indicated in his viva voce evidence that he was taking plaintiff to the police station for questioning.  According to him he handed him to the relieve Commander at the police station so that he can continue with further investigations, that is, to look for other suspects.  On his return, he did not find the plaintiff as he was taken out of detention and was already released but did not have a clue why.

[31]      As an experienced police officer he understands the importance of deposing to a full statement, especially an arrest statement.  From his evidence it is quite clear that he was not sure whether he was arresting the plaintiff or not.  He kept on adapting his version to bolster the reasons for the plaintiff’s arrest when realizing that he could not justify the arrest of the plaintiff.  What compounds this issue further is that the statement of Moopelwa as I indicated above indicates that he was given instructions to arrest the plaintiff and he arrested him.  What is surprising is that Moopelwa was not called to testify.  It thus remains a question which the defendant failed to answer as to who in fact arrested the plaintiff and when or where.

This is because the statement of Moopelwa reveals that he was given the instructions to arrest him when he was at the police station, which version supports what the plaintiff said, whereas Fani talks about arresting plaintiff at the place where he stopped his vehicle. 

[32]      In addition, in the case of Ralekwa v Minister of Safety and Security 2004 (1) SACR 131 (TPD) it was said that where an arrest has occurred in circumstances where the arresting officer did not form his or her own suspicion but relied on the opinion of somebody else, such arrest is unlawful.  Of critical importance is that the evidence of Fani creates a contradiction in the case of the defendant.  In my view, this contradiction is material because it goes to the root of the subject matter before this Court.

[33]      But even if the version of Fani can be accepted to the effect that he was the arresting officer, a fact which I do not find, his action on this particular day fell far short of the test as set out by Jones J in Mabona and Another v Minister of Law and Order and Others 1988 (2) SA 654 (SE) at 658 E-G wherein it was stated that:-

“Would a reasonable man in the second defendant’s position possessed of the same information have considered that there were good and sufficient grounds for suspecting that the plaintiffs were guilty of conspiracy to commit robbery or possession of stolen property knowing it to have been stolen?  It seems to me that in evaluating this information a reasonable man would bear in mind that the section authorizes drastic police action.  It authorizes an arrest on the strength of a suspicion and without the need to swear out a warrant i.e. something which otherwise would be an invasion of private rights and … the reasonable man will therefore analyze and assess the quality of the information at his disposal critically, and he will not accept 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 an arrest.”

[34]      At the risk of repetition, it is not clear whether Fani was effecting the arrest of the plaintiff beside his word of mouth.  His own statement does not support his viva voce evidence.  It is also surprising why it was difficult for him to simply say he arrested the plaintiff rather than saying he took him to the police station for administrative duties.  What exacerbates the matter is that he just left him at the police station, he does not tell us whether he detained him or not, or under what circumstances did he leave him there.  He does not even have a clue why on his return to the police station on the same day he did not find him if he ever arrested him, nor even have a clue why he was released.

[35]      Sight should not be lost that Fani was given information about the car the plaintiff was driving by Tiro and that the Boschoek police station members were chasing the plaintiff’s car for having suspected it.  He was told that the car that was reported about was a black double cab.  He stopped a black club cab.  Although he insisted during his testimony that it is not a club cab but a double cab, his colleague Mr Tiro admitted in Court that the car the plaintiff was driving was not a double cab as Fani claimed but a club cab.  To emphasize this, Tiro indicated during his testimony that he did not search this car because he was told about the double cab.  Fani was furthermore told three occupants were in this car, but he found only two in the car when he stopped the car. 

[36]      In addition to the above loopholes, Fani testified that he found one pair of socks that looks similar to the ones he saw at the scene of crime, but only describes them in terms of their colours.  Of critical importance is that the list which he testified about which was completed by his other colleague regarding the socks and crowbar apparently found in the plaintiff’s car was not discovered.  We were also told that it was not compiled the same day.  This colleague who compiled the list was never called to testify.  A cherry on top is that amongst the documents discovered by the defendant there is a letter by Captain T M Modise, the Station Commander of Tshidilamolomo police station, wherein he/she wrote that four socks were also found in the vehicle.  But her description of the socks is that there were two blue and two white socks. 

[37]      This is a different description of colour to what Fani testified about and also constitutes a contradiction concerning the number thereof because Fani talked about only one pair.   Unfortunately this is another material contradiction in the case presented by the defendant.  But this also shows how important it was for Fani to investigate further the issue of the socks, especially its particularity, as they appear to be his basis for his suspicion.  The only thing that is left from which he claimed to have formed a suspicion is the crowbar, which on its own cannot suffice for a reasonable suspicion to be formed that somebody broke into a certain premises.  This is more of a quantum leap to climb in logic.

[38]      In my view, the defendant failed to prove who the arresting officer was.  In addition, the defendant failed to also prove that the alleged arresting officer, be it Fani or Moopelwa, entertained a suspicion.  It suffices to say that in particular Fani, failed dismally in his evidence to demonstrate that he analyzed and assessed the quality of the information at his disposal critically, and even checked it where it can be checked.  But of particular importance is that he did not seem to appreciate and/or know that he had a discretion to arrest at the time he purportedly arrested the plaintiff and further that, he should exercise it objectively before effecting the arrest if he ever effected one, because he never mentioned this fact in his evidence in chief.  Nothing more can be said about Moopelwa because he was clearly instructed to effect the arrest.

[39]      In the Minister of Safety and Security v Sekhoto and Another 2011 (1) SACR 315 (SCA) matter it was emphasized that, when the required jurisdictional fact are present, the discretion to arrest or not arises… “The officer, it should be emphasized, is not obliged to effect an arrest”.

[40]      In casu, the only problem that was detected by the members of the SAPS on this particular day was that the car of the plaintiff was moving to and from and without its lights on, especially when it came back for the second time.  The laptops were not found in his possession.  The plaintiff was using crutches.  There was no urgency in the circumstances of this matter.  This is a typical case where an investigation of the alleged facts including the statement proffered by the plaintiff had to be investigated first.

[41]      An arrest is of course, in general, a harsher method of initiating a prosecution than citation by way of summons or a written notice to appear.  In casu, there were no circumstances at all that existed which made it lawful under section 40 of the CPA to  arrest the plaintiff more particularly so, without a warrant.  No wonder the prosecutor even declined to put it on the roll.  In my view, no reliance can be placed at all on the second, third and fourth jurisdictional factors in section 40 to make the arrest of the plaintiff lawful as pleaded by the defendant.  It goes without saying that the detention of the plaintiff was therefore unlawful also.

[42]      Consequently the following Order is made:-

42.1    The defendant is held liable for the unlawful arrest and detention of the plaintiff;

42.2    The defendant is ordered to pay the costs.

A.M. KGOELE

JUDGE OF THE HIGH COURT

ATTORNEYS

FOR PLAINTIFF                        :           Motshabi & Modiboa Attorneys

                                                               No. 12 Havenga Street

                                                                Golf View

MAHIKENG  

FOR THE DEFENDANT    :           State Attorneys Mafikeng

                                                       1^st Floor East Gallery

                                                          Mega City Complex

                                                          MMABATHO

---