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“IN THE HIGH COURT OF SOUTH AFRICA”

NORTH WEST DIVISION, MAHIKENG

CASE NUMBER: 868/2015

In the matter between:-

JEFFERY MOLEMELA                                                                              Plaintiff

And

MINISTER OF POLICE                                                                              Defendant

JUDGMENT

GUTTA J.

A.        INTRODUCTION

[1]        Plaintiff instituted an action for damages in the amount of R450 000.00 arising from his unlawful arrest and detention.

[2]        Plaintiff alleged in his particulars of claim that:

2.1       On 16 October 2012, plaintiff was arrested without a warrant of arrest by members of the South African Police. (SAPS)

2.2       Plaintiff was released on 17 October 2012 without being charged and without appearing in open Court.

[3]        Defendant in its plea alleged that the arrest was lawful in that the arresting officer had a reasonable suspicion that plaintiff committed the criminal offence(s) of Impersonating Traffic Police Officers, high-jacking, theft and pointing with a firearm, which offences are referred to in schedule 1 of the Criminal Procedure Act 51 of 1977 (“CPA”) and accordingly the arrest was justified under the provisions of Section 40(1)(b) of the CPA. A criminal docket of car hijacking and theft had been opened against plaintiff and plaintiff was detained for robbery.

[4]        It is common cause that the arrest was effected without a warrant and that defendant had the duty to begin and the onus to prove that the arrest was lawful.

[5]        The issues for determination were:

5.1       whether the arrest and detention by members of SAP was unlawful;

5.2       if unlawful, the quantum of damages to be awarded to plaintiff.

B.        FACTUAL BACKGROUND

[6]        Plaintiff was arrested by the members of the SAPS in relation to an alleged robbery in the form of a cash in transit heist. The incident in question occurred on 16 October 2012 when the complainant Mr Leo Chan, (Chan)  a Chinese male businessman was robbed of his car and money in the amount of R300 000.00 (three hundred thousand).

[7]        Chan was driving his bakkie in the company of his security man (Ramunyisi) when they were stopped by two men clad in traffic police uniforms. He was strangled by one of the men who threw him out of the vehicle at gun point. Other people entered the vehicle and drove off with Ramunyisi still in the vehicle and the money in the back of the bakkie. Ramunyisi and the vehicle were left at the graveyard. Although the vehicle was recovered, cash in the amount of R300 000.00 (three hundred thousand rand) was not recovered.  Chan told the police that he suspected that Ramunyisi was involved in the car hijacking and robbery. Ramunyisi was contacted by the investigating officer and questioned about the car hijacking and the robbery. He denied any involvement in the hijacking and implicated plaintiff. Pursuant thereto plaintiff was arrested without a warrant. A police docket was opened and both Ramunyisi and plaintiff were detained as suspects. They were subsequently released on the advice of the senior prosecutor. 

C.        DEFENDANT’S EVIDENCE

[8]        Defendant called Detective Warrant Officer Tlou Siale (Tlou), the investigating officer. Tlou said on the day of the incident, he received a call that there was a hijacking or heist. He went to the scene where he found Chan and he interviewed him.

[9]        Chan informed him that he was driving in the company of his security guard, Ramunyisi and they had cash in the amount of R300 000.00 which he was going to deposit. On their way they were stopped by a black man clad in a traffic officer’s uniform. The man approached Chan and asked him for his driver’s licence. While he was trying to explain, the man grabbed him out of the vehicle and strangled him and punched him. More men then entered the motor vehicle and drove away with Ramunyisi, still in the motor vehicle.

[10]      Chan suspected Ramunyisi because he didn’t do anything when he saw the man strangle him. Chan said the police recovered his motor vehicle at the graveyard and Ramunyisi was there. Chan told him that, Ramunyisi went home and refused to give the police a statement. Tlou became suspicious that Ramunyisi knew something. He went to Ramunyisi’s home to investigate and requested that he accompany him to the police station so that he could interview him. At the police station, Ramunyisi said he did not know anything and he arrested and detained him. Later Ramunyisi told him that he is not the person who committed the offence, and that he suspects a man by the name of Jeff Molemela (plaintiff).  Ramunyisi told him that plaintiff used to visit Chan’s shop and buy food for him and the ladies who were working there and that this became a routine.   At some stage, plaintiff asked him when Chan takes his money to the bank and he “realised that plaintiff wants to put him into trouble”. He then stopped talking to him and never spoke to him again and changed the route he used to travel.

[11]      Ramunyisi told Tlou that plaintiff owns a boutique on Nelson Mandela drive. He went to plaintiff’s boutique and he informed plaintiff that a serious crime was committed, robbery cash in transit which is a schedule 6 offence and that a security guard identified him as the person who organised the crime because plaintiff had made enquiries regarding when and how Chan delivers the money to the bank. It was around 17:00 and plaintiff was closing his shop. Tlou said he requested plaintiff to accompany him to his office.  Plaintiff was afforded an opportunity to give his version of events if any or any explanation before he took him to the police station. He explained to plaintiff his rights including his rights to make a statement but plaintiff refused to make a statement. All he said was that he does not know anything and he was not going to accompany him to his office. They took plaintiff to the police station.  At the police station, plaintiff said he is not giving any statement and he does not know anything. He also refused to give them his home address saying that he does not reside in Rustenburg but resides in Mamelodi. Plaintiff also refused to provide them with his phone number to enable them to conduct a Section 205.

[12]      They took plaintiff’s fingerprints and sent them to LCRC. Later plaintiff gave them his cellphone number and they did a Section 205 to check if he was communicating with the security guards. The following day he took the docket to the senior prosecutor who read both Chan and Ramunyisi’s statements and told him to get the fingerprint results. As the results were negative, the public prosecutor advised him to release plaintiff and wait for the results of the Section 205. Tlou detained plaintiff until they received his fingerprints results.          He released him the next morning at 9:00am.

[13]      In cross examination he was referred to the plea and he said he entertained a suspicion that plaintiff committed the offences of impersonating traffic police officer, hijacking, theft and pointing with a firearm. He was referred to Ramunyisi’s statement where the time that the statement was taken reads 19:08 or 12:08. It was put to him that he arrested plaintiff at 17:00 which was 2 hours before Ramunyisi made his statement. He said plaintiff was arrested after they obtained Ramunyisi’s statement. He recalled taking Ramunyisi to his senior to take his statement.  He said they went to plaintiff’s business because they wanted to interview him and as plaintiff “was not co-operating, that is what forced us to end up arresting him because he refused to give us the address as well”.  When he asked plaintiff where he resides, he replied that he lives in Mamelodi and that is why he thought he might escape or run away. He did not want to give his address either in Mamelodi or Rustenburg. He did not know whether he was working temporarily or permanently.

[14]      He was referred to Ramunyisi’s statement wherein he said “I do not know the suspects and it was my first time to see them. I can be able to identify them if I see them”.  Tlou said that Ramunyisi was referring to the men who took him to the graveyard. Tlou said “in his statement he indicates that he suspects that Jeff (plaintiff) is the one who organised this heist”. 

[15]      He said plaintiff was charged with car hijacking but that is a nickname, the real charge is robbery. He said when a crime is committed, every individual participates or takes part in the commission of the crime. He said as a police officer he had to investigate “every participant, from the person who planned the crime to the person who delivered the act and committed the crime.” Each participant played a role.  Tlou testified that when he arrested plaintiff he exercised a discretion as plaintiff played a role in the offences that were committed in that he helped to conspire or plan to commit the offences. “He said the Court will ultimately decide on which charges to prosecute plaintiff”. When he went to the prosecutor, he did not have a docket and could not prior to that determine the charge against plaintiff.

[16]      It was put to Tlou in cross examination that plaintiff was not present when the offences were committed, Tlou replied that he could have been present because when a crime is committed there are several participants.  He said he continued to detain Ramunyisi as he was still conducting his investigation. He took plaintiff’s fingerprints because Ramunyisi said after they threw Chan out of the vehicle, the men covered his head and plaintiff could have been one of the men who covered Ramunyisi’s head.  He had to proceed with the investigation before he took the docket to Court. When conducting his investigation, he could not search plaintiff’s house because plaintiff refused to give him his address. He could not release plaintiff because he did not know where he was residing. Plaintiff prevented him from proceeding with his investigation.  He was referred to a statement he made “Interview with suspect”, he said he wrote the time of the interview, 15:08 incorrectly. He also said they released plaintiff at 9:00 am. There were 3 incorrect time entries on the document.

[17]      The next witness for defendant was Libuhani Levy Ramunyisi (Ramunyisi). He is presently employed as a security officer for Chan and was also employed as a security officer at Chan’s shop when the cash in transit occurred. He said on the day in question he was travelling with Chan when they were stopped by a person clad in a traffic officer’s uniform. This person grabbed Chan by the neck or throat and pulled him out of the vehicle. When he was about to alight, another person entered the car and the men covered his head and sprayed him with pepper spray. He travelled with them and they dropped him at the graveyard in Geelhout. He asked assistance of a person who was at the graveyard and called his employer who arrived in the company of the police.  Tlou later fetched him from his home and he went to the police station where he made a statement. He was released the next morning.

[18]      Ramunyisi told the police that he was approached by plaintiff during June or July.  Plaintiff told him that he wanted money from the Chinese and that he had people who could do the job. He told plaintiff that he was not interested. He terminated his relationship with plaintiff because he realized that all plaintiff wanted from him based on their relationship was money.  He said, “The job that Jeff talked to him about, it happened and I knew that it was him. That is what he was referring to me previously when he talked to me”. He said plaintiff discussed this with him in June and the robbery took place in October.  When the police kept him overnight he thought that it was because they suspected him.  In the statement he made to the police, he also said that initially plaintiff asked him for his cellphone number and told him that he must feel free to come to him and that he will buy him food. Later plaintiff asked him about the money for the Chinese. In his statement he also said “Jeff called me several times on my cellphone asking to assist him to rob the money and I refused”.

[19]      In cross examination he said he was a security guard for Chan for approximately two years. On the day in question, they were on their way to Chan’s other shop to drop off the money.            He said when he told plaintiff that Chan has lots of paper money in the box he did not know what plaintiff had in his mind. He acknowledged that it was irresponsible to tell him about Chan’s money. He also said he did not report it to Chan because he did not believe that it would happen as he did not take plaintiff seriously. He only knew on the day when Chan requested him to accompany him what vehicle they would be travelling in and what direction they would be taking.     He said he met plaintiff for the first time at the BP Garage and thereafter plaintiff used to bring him food. At that time he did not know what his motive was. He only terminated the relationship with him when he talked about money.  When questioned whether plaintiff was there when the car was stopped and hijacked. He replied that, “I named him out as a suspect. He was not there amongst the people who hijacked the car but following the previous discussions, it is possible that he is also involved with whoever came there”.

[20]      Initially he testified that he made the statement the day after his arrest and later he testified that he did not know the date or time when the statement was taken.  The date on the statement is 16 October at 19:00. After he gave his written statement, he was taken back to his cell and he was released the next day.  It was put to him that Tlou said he arrested plaintiff at 17:00 because of what Ramunyisi told him but he now says that when he made the statement it was the first time he talked to the police. He replied that he could only answer questions relating to him and not to Tlou.  He was referred to another statement which he said he made on the 16 October. It was put to him that the date on the statement is 17 October at 16:00. In re-examination clarity was sought regarding the second statement and it was established that it was not a sworn statement but it appears in the police docket.

[21]      He said apart from the pepper spray he was kicked in his kidneys and punched in the mouth and lost some teeth. He admitted that he didn’t tell the police he was injured because they didn’t ask him. He also only realized he was injured later when he went to the toilet and experienced pain.

D.        APPLICATION FOR JUDGMENT

[22]      At this stage in the proceedings, defendant closed its case and plaintiff brought an application for judgment. The crux of Mr Smit’s argument was that there was no evidence to sustain a reasonable suspicion and that the suspicion was not objectively sustainable because of the contradictory versions set out hereinbelow:

22.1    The first version in accordance with the plea is that Tlou entertained a reasonable suspicion that plaintiff had committed a criminal offence of impersonating traffic officers, hijacking, theft and pointing with a firearm.  Mr Smit submitted that this implies active participation in the crimes. Tlou testified that Ramunyisi could not identify the suspects actively participating in the crimes.

22.2    The second version by Tlou is that he arrested plaintiff upon the information given by Ramunyisi which information was that plaintiff was suspected of planning these crimes.  The arrest was effected without Ramunyisi’s statement because the statement was made on the 16/10/17 at 19h00 after plaintiff’s arrest and Ramunyisi confirmed that he did not tell the police anything before he made the statement.

22.3    The third version is that Tlou arrested plaintiff because Ramunyisi was not willing to provide him with a statement and did not provide Tlou with his residential address and Tlou feared that he might escape.

[23]      Mr Smit submitted further that the aforesaid second and third versions were not pleaded and that the Court accordingly cannot find that Tlou entertained a reasonable suspicion to arrest plaintiff. Mr Smit submitted further that Ramunyisi was not a credible witness and changed versions when confronted with a different version.  Mr Smit submitted that the arrestor’s grounds must be reasonable from an objective point of view.  When one has an initial suspicion steps have to be taken to have it confirmed in order to make it a reasonable suspicion.  There must be evidence that the arresting officer formed a suspicion which is objectively sustainable.  Mr Smit submitted that the Court should ignore what Ramunyisi said to Tlou before the arrest.

[24]      Counsel for defendant, Ms Qofa submitted that when Tlou received a report about the alleged crime of car hijacking and robbery, he attended the scene and found that indeed a crime was committed.  He immediately conducted his investigations by following the information which he received, that among others being detaining Ramunyisi who was with the complainant during the time of the robbery and the prime suspect in the crime. Having detained Ramunyisi, Tlou questioned him and he said that he had been approached by plaintiff on or about June or July 2012, and plaintiff has specifically indicated that he intended to “take the money from the Chinese” and that “he had people who would do so for him”. Having obtained this information from a suspect, Tlou attended to the address of plaintiff as plaintiff immediately became suspect and he intended to question him accordingly.

[25]      Ms Qofa further submitted that upon Tlou’s arrival at plaintiff’s address, Tlou informed plaintiff of the crime that has been committed and invited him to provide an answer to the allegations against him. Plaintiff was  uncooperative, aggressive and refused to provide his personal information. Plaintiff became violent and had to be restrained by the police officer. This conduct heightened Tlou’s suspicion and he immediately arrested plaintiff.  Tlou was justified in entertaining a reasonable suspicion after being offered information from a suspect.

[26]      Both Ramunyisi and plaintiff became suspects and were arrested forthwith.  Ms Qofa relied on the case Minister of Safety and Security v Sekhoto[1], to submit that as there was more than one suspect, Tlou had to apprehend all the suspects and failure to do so would have prejudiced the administration of justice.

[27]      Ms Qofa submitted that from the evidence led and when considering the nature and magnitude of the crime committed, it warranted Tlou arresting plaintiff who was implicated in the crime. She relied on the case of Zweni v Minister of Police and Another[2] where Marais AJ said the following:-

“[25]    Whether further investigation is warranted before an arrest is effected must surely depend on the facts of each case.  An objective assessment of the three statements available indicates there were reasonable grounds to arrest without the need for further investigation.

[26]   The requirement is that the arresting officer only has to form a suspicion.  I agree with Jones J when he said, “This is not to say that the information at his disposal must be of sufficient high quality and cogency to engender him a conviction that the suspect is in fact guilty.  The section requires suspicion but not certainty.”

[28]      Ms Qofa further submitted that plaintiff placed no version before the defendants’ witnesses.  There was no alibi and no defence. Plaintiff did not deny his acquaintance with Ramunyisi and deny that he approached him and took food to the shop or enquired about Chan’s money.

[29]      This Court after hearing the submissions made by Counsels for plaintiff and defendant and considering the evidence, refused the application for judgment.  The reason for my refusal are briefly set out hereinbelow.

[30]     It is trite that a plaintiff may at the close of defendant’s case, without leading evidence and without closing its case apply for judgment in circumstances where the plaintiff has not discharged its onus[3].

The test is similar to the test when applying for absolution from the instance.  The applicable approach was enunciated by Harms JA in Gordon Lloyd Page and Associates v Rivera[4], where he stated the following:-

“The test for absolution to be applied by a trial court at the end of a plaintiff’s case was formulated in Claude Neon Lights (SA) Ltd v Daniel[5] in these terms:

“….(W)hen 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.  (Gascoyne v Paul and Hunter 1917 TPD 170 at 173: Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958 (4) SA 307(T). This implies that a plaintiff has to make out a prima facie case in the sense that there is evidence relating to all the elements of the claim to survive absolution because without such evidence no Court could find for the plaintiff (Marine & Trade Insurance Co Ltd v Van der Schyff Schmidt Bewysreg 4^th ed at 91-92)”.

[31]      Tindall J in Goosen v Stevenson[6] explains the concept of prima facie proof as follows:-

“If the party, on whom lies the burden to proof, goes as far as he reasonably can in producing evidence and that evidence calls for an answer  then, in such circumstances, he has produced prima facie proof, and in the absence of an answer from the other side, it becomes conclusive proof and he completely discharges his onus of proof’.  The question is whether the evidence given in this case amounts to prima facie evidence in that sense, and whether, in the absence of an answer, it amounts to sufficient proof”.  

[32]      A similar test applies when a defendant upon whom the onus rest fails to lead evidence in discharge of that onus with the result that a reasonable Court cannot come to the conclusion that it might be accepted. At the close of defendant’s case, the question which the Court has to ask is whether there is evidence on which a reasonable man might find for defendant[7].

[33]      In determining the question of reasonable suspicion, the Court would need to consider whether the information available to Tlou would lead a reasonable person to be suspicious. The test whether Tlou had a reasonable suspicion is an objective one[8].

[34]      The principle was clearly enunciated in the decision in Shaaban Hussein & Others vs Chong Fook kam[9] where LJ Devlin said the following;

“Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking; ‘I suspect but I cannot prove’. Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end… Prima facie proof consists of admissible evidence, suspicion can take into account matters that could not be put in evidence at all … Suspicion can take into account also matters which although admissible could not form part of a prima facie case”.

[35]      The following facts are common cause:-

35.1    Tlou is a police officer;

35.2    Tlou was investigating a schedule 1 offence;

35.3    Ramunyisi was employed for Chan when the crime was committed;

35.4    Chan suspected Ramunyisi of being involved in the cash transit as he was in the vehicle when the offence was committed and he did not assist Chan when the assailant attacked him.

35.5    The perpetrators drove off with Chan’s vehicle and his money while Ramunyisi was still in the vehicle.

35.6    The perpetrators left Ramunyisi and Chan’s vehicle at the graveyard and left with the cash.

[36]      Tlou interviewed Ramunyisi as he suspected that he had information about the crime that was committed. Ramunyisi told Tlou that he suspects plaintiff and explained how plaintiff befriended him and how he would buy food for him and the ladies at Chan’s shop. He told Tlou that at some stage, plaintiff started to enquire about Chan’s business and wanted information about when Chan took his money to the bank. Ramunyisi in his evidence also said he told the police that plaintiff told him that “he wanted money from the Chinese and he had people who could do the job”. He also said that “the job that Jeff (plaintiff) talked about it happened and he knew it was him”.

[37]      This information formed the basis for Tlou entertaining a suspicion that plaintiff was involved in the commission of the offence. Tlou’s suspicion led to him conducting further investigations by going to plaintiff and questioning him. Tlou said plaintiff was not cooperative and was not prepared to go with him to the police station. Plaintiff also didn’t give him his residential address.

[38]     Smit’s submission that there are contradictory versions regarding the reasons why Tlou arrested plaintiff, particularly that he first suspected plaintiff of committing the crimes of impersonating traffic officer, hijacking and pointing of a firearm, and secondly he suspected him of planning the crime is misconceived as it does not detract from Tlou’s suspicion that plaintiff was involved in the commission of the offence. Tlou said that according to Ramunyisi, the perpetrators covered his eyes when they entered the motor vehicle and that one of the men could have been plaintiff.  Tlou also testified about the seriousness of the crime committed. Tlou said as a police officer he had to investigate “every participant, from the person who planned the crime, to the person who delivered the act and committed the crime.  Each participants plays a role”.

[39]     Mr Smit submitted that there was no written statement when Tlou arrested Ramunyisi. He said that Tlou ought to have obtained a written statement from Ramunyisi before arresting plaintiff. The Court in Minister of Safety and Security vs Sekhoto[10] supra said that:

“Ordinarily a Police arrest is based on a sworn statement sometimes supported by sworn statements by other witnesses … … This does not mean that the police cannot arrest a suspect without a warrant in the absence of a sworn statement … Each case is dealt with according to its own merits”.

[40]      Also the case of Zweni v Minister of Police and Another[11] supra plaintiff having been confronted with the version of defendant, only challenged the dates and sequence of events. Plaintiff in the Zweni case supra, alleged that there were contradictions in the statements of the three state witnesses available at the time of arrest.  The Court found that there were no material contradictions on the statements except for the dates. The Court also said the question whether further investigation was warranted before an arrest depends on the facts of each case. What was required was suspicion but not certainty. Tlou in my view formed a reasonable suspicion that plaintiff committed the offence.

[41]      It was thus not necessary for Tlou to secure Ramunyisi’s written statement before he arrested plaintiff.The nature of the crime which implicated plaintiff required Tlou to act with urgency and the recording of the statement cannot be viewed as more important than conducting further investigations and arresting suspects. Both Ramunyisi and plaintiff were suspects and were arrested.

[42]      Tlou’s evidence was supported by both Ramunyisi’s evidence as well as the statements made by both Ramunyisi and Tlou. Based on the aforestated evidence, I was persuaded that defendant had made out a prima facie case as plaintiff’s evidence “calls for an answer[12]” and when viewed objectively, a reasonable man could or might come to the conclusion that Tlou had a reasonable suspicion when he arrested plaintiff.  For these reasons I dismissed the plaintiff’s application for judgment.

[43]      Plaintiff closed its case without calling witnesses.

E.        THE LAW

[44]      In terms of section 40(1)(b) of the Criminal Procedure Act 51 of 1977 (the Act), a peace officer may without a warrant, arrest any person whom he reasonably suspects of having committed an offence referred to in schedule 1, other than the offence of escaping from lawful custody. The jurisdictional facts for a section 40(1)(b) defence are that:

i)       The arrestor must be a peace officer.

ii)      The arrestor must entertain a suspicion.

iii)     The suspicion must be that the suspect committed an offence referred to in schedule 1.

iv)     The suspicion must rest on reasonable grounds[13].

[45]      The test in considering whether Tlou’s suspicion was reasonable requires an objective standard of a reasonable person. The suspicion must be such as would ordinarily move a reasonable man to form the suspicion that the person arrested committed a schedule 1 offence[14].

[46]     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. This requires that it must be exercised with the objective of bringing the suspect before court.

[47]     The rationale for this stringent approach rests in the fact that the liberty of an individual is constitutionally enshrined in the right of freedom and security[15].

[48]      Defendant has to prove that the arresting officer suspected plaintiff of committing a Schedule 1 offence.  The test is not whether the offence is a Schedule 1 offence but whether Tlou reasonably suspected plaintiff of committing an offence referred to in Schedule 1 of the Act.

[49]   Schedule 1 offences includes serious offences and offences for which a sentence may be imposed of imprisonment exceeding six months without the option of a fine. Both robbery and theft are crimes listed in Schedule 1 of the Act and a suspect can be arrested by a police officer without a warrant regarding allegations in relation to these offences.

[50]   Section 40(1)(b) of the Act does not require a peace officer who carries out an arrest without a warrant to be certain that all the elements of the crime prescribed by schedule 1 have been established. All that the section requires is that the peace officer should entertain a reasonable suspicion that a schedule 1 offence had been committed[16].  Due to the requirement of reasonable suspicion, absolute certainty that the offence warranting the punishment specified in the schedule, is not necessary. It is not required of the policeman, before effecting an arrest under this section, to first give consideration to the question of whether a court might sentence the suspect to more than six months imprisonment without the option of a fine[17].

[51]   An arrest without a warrant is a drastic means of initiating a prosecution or securing the accused attendance in court. Police officers who purport to act in terms of section 40 (1)(b) should investigate exculpatory explanations offered by a suspect before they can form a reasonable suspicion for the purpose of a lawful arrest[18].

F.      EVALUATION

[52]      Tlou was in my view a good witness who was able to answer questions in examination and cross examination. Tlou’s evidence was corroborated by the evidence of Ramunyisi who explained why he suspected plaintiff of being involved in the commission of the offence. I am not in agreement with Mr Smit that Tlou proffered 3 different explanations why he arrested plaintiff. From the onset Tlou said he suspected plaintiff of committing the offences, namely hijacking, theft and pointing with a firearm because of the information he received from Ramunyisi. Ramunyisi told him that plaintiff befriended him and enquired about when Chan takes his money to the bank and that he wanted the Chinese man’s money and he had “people who could do the job”. Ramunyisi also testified that he told the police that “The job that Jeff talked about, it happened and I knew that it was him. That is what he was referring to previously when he talked to me”. In Tlou’s statement he said, “I suspect Jeff to have organised that type of robbery”.  Tlou also referred to Ramunyisi’s statement wherein Ramunyisi said inter alia that, “He then asked me how much the Chinese makes and I told him that I do not know. I only see a box containing a lot of paper money. He told me he want the money and he wanted me to help him to get the said money. He also told me that he had people that can do the job. I then told him that I am not interested in what he is saying”.

[53]      In cross examination Tlou reiterated that he arrested plaintiff because of the information he received from Ramunyisi:-

Q  So it is not really correct for you to say you suspected Jeff Molemela of having committed those crimes, pointing the firearm, theft, impersonating the traffic police officer?

A  According to my observation, I observed that possibly Jeff can be a suspect in this case.

Q  How did you come to the conclusion sir?

A  Because of what the security guard informed me.

Q  But the security guard told you that Jeff was not one of the people committing those offences?

A  The security guard told me that he suspects that it is Jeff who organised the crime

Q  We can agree that you did not entertain a suspicion of Jeff Molemela committing those crimes you now change it to be he might have organised it?

A  That is why I ended up arresting him so I can finish my investigation so that he should not be far from me.

Q  So you arrested him to further investigate the possibility of him having organised the commission of the offences. Do I understand correct?

A Correct.

Q  So it was not then an arrest given to your suspicion that Jeff Molemela committed the offences of impersonating the traffic police officer, of hijacking, of theft and of pointing of a firearm?

A  I arrested him because of the security officer’s statement.

Q  Now your first and prime suspects at that stage points a finger to Mr Molemela and you decide even though he himself confirm that Mr Molemela did not actually participate in these offences, he points the finger to him and you go to Mr Molemela?

A  This is a very serious crime. It is a heist. Heists are very prevalent in our country. Police officers are being killed on such crimes and the unform of the traffic officers was also used, which was worn, the traffic officers uniform was worn by the criminals. Now I was supposed to do a thorough investigation to ascertain or to differentiate or to make sure who is the person that committed the crime between the security guard and Mr Molemela”. (own emphasis)

[54]      Mr Smit raised a point that there is conflicting evidence regarding when Ramunyisi made a statement as Ramunyisi said he gave the statement at 19:00 while plaintiff was arrested at 17:00. Hence, he submitted that Tlou did not have Ramunyisi’s statement when he arrested plaintiff. I am of the view that the probabilities favour that Ramunyisi made a statement (albeit not written), to Tlou before Tlou went to question plaintiff as Tlou said he went to see plaintiff so he could put Ramunyisi’s allegations to him. Furthermore, although there is uncertainty regarding whether plaintiff was uncooperative and refused to give a statement and to disclose his residential address and his cell number at his workplace or at the police station as Tlou’s evidence alludes to both scenarios, the probabilities are that plaintiff was uncooperative at both his workplace and at the station as Tlou’s evidence suggests. These issues were not challenged as plaintiff elected not to testify or to dispute defendant’s evidence. Plaintiff told Tlou that he lives in Mamelodi or Rustenburg and he didn’t give him his residential address. Tlou suspected that plaintiff might run away.

[55]      After Tlou question Ramunyisi, he had already formed the suspicion based on the information he received from him. He conducted further investigation by going to interview plaintiff and by putting the allegations made by Ramunyisi to him. Plaintiff did not cooperate and did not want to accompany him to the police station for questioning and also did not want to give him his residential address.  This heightened Tlou’s suspicion. This was a serious crime and serious allegations were levelled against plaintiff. Tlou, in my view, then exercised his discretion and arrested plaintiff and took him to the police station.  The discretion arose after the jurisdictional facts, namely the suspicion based on reasonable grounds were present.  There is no merit in plaintiff’s contention that Tlou arrested him not because of the suspicion in respect of the crimes but because plaintiff was not cooperative and refused to make a statement. It is important to consider the totality of evidence.  

[56]      The crimes of car hijacking and robbery are serious crimes. These crimes have claimed many innocent lives, members of the SAPS therefore treat these crimes with the seriousness they require and it is within their scope and duty to protect the society and enforce the law. The law empowers them to be very responsive and make any arrests with or without warrant as soon as they get information leading to the suspects in these kind of crimes. The nature and magnitude of the crimes committed in this case warranted the making of arrests on any person implicated in the commission of the crimes, hence both Ramunyisi and plaintiff became suspects in the matter and were arrested. In the case of Sekhoto supra, the Court said:

“The fact that two or more persons are involved in the criminal activity being investigated, is a relevant factor. When members of a gang or syndicate or racketeering enterprise are sought because of a suspicion against them, it can be important, from a crime investigation point of view, that they be arrested simultaneously, also if they are at separate places so as not to be able to communicate with each other, which communication could prejudice the investigation. Evidence may be destroyed or alibis fabricated. The fact that persons are arrested on related charges is a relevant consideration in assessing the lawfulness of the arrest”.

[57]      Further there is no merit in Mr Smit’s contention that the suspicion was that plaintiff planned the offence and not that he actively participated in the commission of the offence. According to Ramunyisi, plaintiff was involved in the commission of the offence. Tlou said as a police officer he had to investigate “every participant, from the person who planned the crime, to the person who delivered the act and committed the crime”. He said each participant plays a role.  Tlou also said that one of the men in the vehicle could have been plaintiff because Ramunyisi did not see who put the cloth over his eyes. More importantly, when applying the doctrine of common purpose in circumstances where there was an agreement to commit the crime, active participation is not a requirement. The prosecutor may also amend the charges and this falls within their domain.

[58]     Courts in general will not interfere with the proper exercise of a public officer’s decision to use his power in a situation such as the present one where the discretion was bona fide exercised and there is no evidence that Tlou acted mala fide or from ulterior and improper motives.

[59]      Plaintiff’s counsel, Ms Smit was at pains to emphasize that Tlou ought to have obtained a written statement from Ramunyisi before arresting plaintiff.  The issue was fully canvassed infra in application for judgment. The fact that Tlou recorded Ramunyisi’s statement in writing after arresting plaintiff does not make plaintiff’s arrest unlawful. In Minister of Safety and Security & Another v Koekemoer[19], the Court considered the question whether the arresting officer without having obtained witness statement, entertained a reasonable suspicion and therefore acted reasonably when he effected the arrest. The Court said:-

“Section 40(1)(b) does not require a police officer who can effect an  arrest without a warrant to be certain that all the elements of the crime prescribed by Schedule 1, have been established, and that the section requires for an officer to entertain a reasonable suspicion that a Schedule 1 offence had been committed”… It is not a requirement that an arresting officer should be in possession of a written statement before executing an arrest”. (own emphasis)

[60]     The Court in evaluating the evidence and deciding whether defendant discharged the onus of proving that the suspicion was reasonable and whether Tlou exercised a discretion has only the defendant’s evidence as plaintiff closed its case without testifying or calling witnesses. Furthermore after after defendant called Tlou and Ramunyisi, plaintiff placed no version to either of them that could have either contradicted and/or placed defendant’s version in dispute. The effect of such failure to testify depends upon all the circumstance of the case[20].  In Olivier vs Minister of Safety and Security[21], Horn J said the following in rejecting the argument of counsel for the defendant that an adverse inference had to be drawn from the plaintiff’s failure to testify. “It is quite permissible for a plaintiff in a case of unlawful arrest, when the onus rests on the defendant, when the facts are largely common cause and the unlawfulness of the defendant’s conduct can be ascertained from those facts and the evidence presented by the defendant, to refrain from giving evidence. Even more so where there is nothing for the plaintiff to rebut, such as was the case here. In my view nothing sinister can be read into the plaintiff’s decision not to give evidence in the circumstances of this case”.

[61]     The facts in casu are distinguishable from Olivier supra, in that the unlawfulness of defendant’s conduct cannot in my view be ascertained from the facts and evidence and Ramunyisi’s evidence that plaintiff befriended him and the ladies at Chan’s business and bought them food and that plaintiff made enquiries about Chan’s money and that he wanted money from the Chinese and that plaintiff planned the crime and had people who would commit the crime, remains unchallenged. Hence there was evidence for plaintiff to rebut.

[62]      This Court has already ruled that defendant produced prima facie proof that Tlou entertained a reasonable suspicion that plaintiff committed a Schedule 1 offence and exercised his discretion to arrest plaintiff in good faith, rationally and not arbitrarily. In the absence of an answer from plaintiff, and in the light of defendant’s evidence supra, the prima facie evidence becomes conclusive proof. Accordingly, I am of the view that defendant discharged the onus[22] of proving that plaintiff’s arrest and detention was lawful.

G.        ORDER

[63]      In the result, plaintiff’s claim is dismissed with costs.

N. GUTTA

JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING                               :   20 FEBRUARY 2018

DATE OF JUDGMENT                            :   24 MAY 2018

ADVOCATE FOR PLAINTIFF                  :   ADV PJS SMIT

ADVOCATE FOR DEFENDANT              :   ADV M QOFA

ATTORNEYS FOR PLAINTIFF                 :  LABUSCHAGNE ATTORNEYS            

ATTORNEYS FOR RESPONDENT          :  STATE ATTORNEY

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