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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION – MAHIKENG

 

Case No.: 1440/2020

 

In the matter between:       

TEBOHO CHARLES MOHALE                                        First Plaintiff

 

FRED BADANILE MBITYO                                             Second Plaintiff

 

and

 

MINISTER OF SOUTH AFRICAN                                    Defendant

POLICE SERVICES

 

This judgement was handed down electronically by circulation to the parties’ representatives via email. The date and time for hand-down is deemed to be 03 March 2023.

 

ORDER

 

In the result, the following order is made:

 

1.    The application for judgement against the defendant is refused.

 

2.    The trial shall proceed on the merits.

JUDGEMENT

 

MFENYANA AJ

 

Introduction

 

[1]        On 14 August 2020 the first and second plaintiff instituted separate actions against the defendant under case number: 1440/2020 and 1442/2020, for damages arising from their arrests and detention. It being the case that the plaintiffs were arrested and detained at the same time under the same circumstances and for the same offence, they brought an application to have the two actions consolidated.  On 25 August 2022 the matters were consolidated under case number: 1440/2020 with costs to be in the cause.

 

[2]        In their particulars of claim, the plaintiffs state that on 4 November 2019 they were arrested by members of the defendant stationed at Lichtenburg Police Station near Bakerville, on allegations of (business) robbery.  They were thereafter detained at the police cells for a period of ten days and released on 14 November 2019. They contend that their arrest and detention was unlawful. They further contend that the conditions of their detention were inhumane. They provide no further details in this regard. The plaintiffs further state that they were deprived of their liberty and freedom enshrined in the Constitution, and that their rights to freedom, privacy and dignity were also infringed.

 

[3]        Each of the plaintiffs claims an amount of R960 000.00 in damages ‘for contumelia, humiliation, deprivation of liberty and reputation and discomfort.’

 

[4]        The defendant denies that the plaintiffs’ arrests and detention were unlawful and relies on section 40(1)(a) of the Criminal Procedure Act[1] (the Act). In his amended plea in respect of both plaintiffs, the defendant pleads as follows:

 

“4.2     the Defendant denies that the arrest and detention were unlawful and pleads that both the arrest and detention were lawful in terms of Section 40(1)(a) of the Criminal Procedure Act 51 of 1977 in that:

 

 

4.2.1    The arresting officer, Constable Thapelo Erick Mashaba, was a peace officer as defined in Act 51 of 1977;

4.2.2    ….

 

4.2.3    The arresting officer reasonably suspect that the plaintiff had committed the offence of robbery, which is a Schedule 1 offence, on 4 November 2019 at Bakerville.

 

4.2.4    The arresting officer reasonably exercised his discretion to arrest properly in the circumstances.

 

[5]        It is trite that where a defendant denies the unlawfulness of an arrest, that defendant bears the onus to prove that the arrest was lawful.[2]

 

[6]        At the commencement of the proceedings, the parties agreed to separation of issues. The court ordered that the matter should proceed on merits with the issue of quantum postponed sine die in terms of Rule 33(4) of the Uniform Rules of Court.

 

Issue for determination

 

[7]        What stands for determination by this Court is whether the plaintiffs’ arrests and detention were lawful.

 

Defendant’s case

 

[8]        In pursuance of his defence, the defendant, who bears the onus as well as the duty to begin, called one witness, Constable Thapelo Eric Mashaba (Constable Mashaba) to testify. In essence, Constable Mashaba’s testimony was that he has been in the employ of the South African Police Service as a police officer for a period of ten years. On the day in question he was doing crime prevention duties, patrolling and attending to complaints, when he received information over the police two-way radio that a crime was in progress in Bakerville in the area of Lichtenburg. He immediately drove towards Lichtenburg. While on his way, he received two other calls through the police radio that the suspects were driving in a white Toyota Corolla. Further information he gleaned was that the said Toyota Corolla had collided with a red motor vehicle belonging to the complainant, and had red paint marks on it, resulting from the collision. It was further reported that the suspects were being chased by members of the community.

 

[9]        On his way, he came across a white Toyota Corolla driving in the opposite direction. He made a U-turn, put on the police siren and followed the vehicle. The vehicle sped off and he gave chase until it came to a T-junction. Three gentlemen alighted from the vehicle. He apprehended one of them who later turned out to be the first plaintiff, and asked him why they were running away. The first plaintiff told him that he was hijacked and that is why he was running away. He further stated that when he asked the first plaintiff what happened in Bakerville, he said he did not know anything about it and stated that they were travelling to Zeerust.  At that stage he informed the first plaintiff of his constitutional rights and the reason for his arrest.

 

[10]      In his sworn statement made to the police, Constable Mashaba stated that the registration number of the Toyota Corolla given to him over the police radio corresponded with the vehicle driven by the plaintiffs.

 

[11]      With regard to the arrest of the second plaintiff, Constable Mashaba stated that after arresting the first plaintiff, he followed the Toyota Corolla and ultimately saw it driving towards him. The vehicle was driven by the second plaintiff. When he enquired from the him why he was driving on that road the driver told him that he was hired by General, to go and buy diamonds. He just dropped ‘them’ at Bakerville and while he was driving around, General called him and asked him to collect them as they were being attacked by the community. He went to fetch General  and company, and while he was loading them a red 1400 bakkie bumped his vehicle and when he tried to enquire from the driver of the other vehicle, General pointed him with a firearm and ordered him to drive off, which he did. When he asked him what was happening and why the community was chasing them, General told him that the people of Bakerville had robbed his younger brother the previous week and he was communicating with other suspects who got away. He then informed the second plaintiff of his constitutional rights and the reason for his arrest.

 

[12]      According to the information in the docket, the first plaintiff was charged with armed robbery (business robbery) and the second plaintiff with business robbery.

 

[13]      During cross examination Constable Mashaba confirmed that the only description he received was that there were male persons travelling in a Toyota Corolla. He did not get any description about the physical attributes or clothing of the people in the Toyota Corolla except for one who was wearing a grey overall. When asked why he did not give this information during his testimony, Constable Mashaba stated that he did not do so as he was only answering to what he was asked. Mr Legae, counsel for the plaintiffs, put to him that he was adapting his evidence which he denied.

 

[14]      When asked what the distance was between where he was when he received the complaint and Bakerville, he stated that he was on the other side of Lichtenburg approximately 23km away from Bakerville. It was about 18km to Bakerville when he came across the plaintiffs’ vehicle, not long after passing town. He was asked whether it was possible that in the 18km some people may have alighted and others boarded. His response was that he does not know.

 

[15]      Asked whether he verified the information, having been a police officer for ten years, Constable Mashaba testified that he verified with the complainant when he arrested the plaintiffs. He conceded that he did not tell this to the Court in his examination in chief, nor did he include it in his statement. He further conceded that he did the verification after he had arrested the plaintiffs. He further conceded that the complainant only pointed out the car to him and not its occupants. He denied the first plaintiff’s version that the first plaintiff was taken back to the shop and that the complainant said that he was not the one. He further conceded that he did not tell the Court about the toy gun which fell as they were chasing the suspects.

 

[16]      Constable Mashaba confirmed that during the identity parade, none of the plaintiffs were identified. He denied that he assaulted the second plaintiff or told him that one of his relatives was previously a victim of robbery. When it was put to him that he acted emotionally and did not exercise his discretion, Constable Mashaba stated that the description of the grey overall fit the description he got from the informant, suggesting that the information correlated with what he observed.

 

[17]      He further testified that he arrested the first plaintiff at approximately 08h00 and put him in the police vehicle. While the first plaintiff was in the police vehicle he drove around in search of other suspects, until later that afternoon when he put the first plaintiff in the police cells. He denied that he knew that the first plaintiff is asthmatic  or that he fainted during the ordeal. He further denied that he phoned his colleague on the day to enquire about the first plaintiff’s state of health.

 

Plaintiffs’ case

 

[18]      The plaintiffs did not lead any evidence after the defendant closed his case and made an application for judgement (absolution) against the defendant on the basis that the defendant failed to prove his case that the arrest was lawful. In making the application Mr Legae contended that the witness on behalf of the defendant purely relied on hearsay evidence from the informant and did not exercise any discretion in the circumstances. He did not conduct any investigation to satisfy himself of the identity of the alleged perpetrators and the description of the motor vehicle they used. He only verified the motor vehicle by the number of its occupants without satisfying himself that they were indeed the suspects he was looking for.

 

[19]      Mr Legae further averred that some people may have alighted from the motor vehicle and others boarded, but Constable Mashaba simply arrested the plaintiffs despite the fact that they gave him an explanation as to why they were on that road at that time. He further argued that the defendant’s reliance on section 40(1)(a) is not supported by evidence as the alleged offence did not take place in the presence of the defendant’s only witness.

 

[20]      On the contrary, Mr Masike argued on behalf of the defendants that the description of the motor vehicle was given to Constable Mashaba by the informant, and the plaintiffs were in that ‘getaway’ vehicle. They gave different explanations for their presence there; that the first plaintiff stated that they were on their way to Zeerust while the second plaintiff said he was sent by General. He contended that there is a case for both plaintiffs to answer.

 

Analysis and evaluation of evidence

 

[21]      It was not placed in dispute that Constable Mashaba is a peace officer. The dispute then turns on whether the alleged offence was committed by the plaintiffs in his presence. The defendant’s pleaded case is that the plaintiffs’ arrest and detention was lawful in terms of section 40(1)(a). It is further the defendant’s pleaded case that the arresting officer, who is a peace officer, as defined in the Act, reasonably suspected that the plaintiffs had committed the offence of robbery which is a Schedule 1 offence. This is indeed so. Despite the defendant’s reliance on section 40(1)(a) the jurisdictional facts as set out in section 40(1)(b), as pleaded by the defendant in his amended plea, have been satisfied. The evidence led also bears the defendant’s contention out.

 

[22]      In my view the defendant’s conflation of the provisions of 40(1)(a) and section 40(1)(b), does not detract from the fact that the evidence before this Court, as supported by the defendant’s amended plea, clearly states that the arresting officer entertained a reasonable suspicion.

 

[23]      During his testimony, the arresting officer stated that he exercised his discretion in that the description of the vehicle in which the plaintiffs were driving matched the description he was given,  the red paint marks on the vehicle, as well as the registration number, and so did the description of the grey overall which the first plaintiff was wearing.

 

[24]      What stood clearly from Constable Mashaba’s testimony is that before he reached Bakerville, he came into contact with persons he suspected of having committed the alleged offence, driving in a motor vehicle he suspected to be the one involved in the reported robbery, which had the red paint marks from another motor vehicle as alleged. After asking them a few questions he arrested them.  Obviously, the arrest was grounded on a suspicion from the information he received on the police radio.

 

Applicable legal principles

 

[25]  For an arrest predicated on a reasonable suspicion, a litigant must

 satisfy the jurisdictional facts set out in section 40(1)(b). These are that the arresting officer must be a peace officer and that he must reasonably suspect that the person under arrest has committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody.

 

[26]   What Constable Mashaba contended was that in exercising his discretion to arrest the plaintiffs, he considered that they were driving in a motor vehicle which fit the description provided to him in all material respects, which had red paint marks on it as he had been informed, with the same registration plates, with the same number of occupants, one of whom matched the description given to him. There can be no doubt that his suspicion rested on reasonable grounds. The facts and the evidence support the existence of jurisdictional facts for reliance on section 40(1)(b).These facts were pleaded albeit with an incorrect section of the Act.  

 

[27]   The question is whether pleading an incorrection section of the Act whilst the facts and evidence support the defendant’s contention is fatal to the defendant’s case. I do not think it is.  

 

[28]      At the close of the defendant’s case, the applicants made an application that judgement be entered against the defendant, as he failed to prove any of the elements required for a defence in terms of section 40(1)(a).

 

[29]      The defendant opposed the application on the basis that there was a case for the plaintiffs to answer.

 

[30]      Rule 39(6) provides that after the plaintiff has closed his case and before the defendant commences his own case, he may apply for the dismissal of the plaintiff’s claim. “Should the court accede to this, the judgment will be one of absolution from the instance.”[3]

 

[31]      In the present case the defendant bears the onus to prove that the arrests and detention of the first and second plaintiffs were lawful and the concomitant duty to begin. In my view, the provisions of Rule 39(6), mutatis mutandis, apply to the defendant in these circumstances. For practical reasons and by operation of the law, the defendant in this case is in the stead of a plaintiff.

 

[32]      The locus classicus for the proposition that a plaintiff may apply for judgement before leading evidence and before closing its case, is the case of Siko v Zonsa[4]. In that case the court held that it would be an exercise in futility, and a “waste of time to proceed with the matter further.”   In Pather v Minister of Police[5] the court articulated the position as follows:

 

“.. Plaintiff is entitled to apply for judgment at the close of the Defendant’s case without leading evidence and without closing its case. It was submitted on her behalf that the test to be applied is similar to that of absolution from the instance where a Plaintiff has not discharged its onus.[6]

 

[35]      The principle has in my view become settled and has been confirmed in this division in Moeng v Minister of Police[7] and subsequent other decisions. I align myself with it.

 

[36]      The test to be applied at the end of the plaintiff’s case is “whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might find for the plaintiff.”[8] The plaintiff has to make out a prima facie case in the sense that there is evidence relating to all the elements of the claim, in this case, the defence. This approach has been followed by our courts in various other decisions[9] and remains extant.

 

[37]      The court must consider whether there is evidence upon which a reasonable man might find for the plaintiff. It was held in Supreme Service Station (1969) (Pvt) Ltd v Fox and Goodridge (Pvt)Ltd that “(i)n case of doubt as to what a reasonable court might do, the court should lean on the side of allowing the case to proceed, for the plaintiff (defendant) should not be lightly deprived of his remedy without the evidence of the defendant (plaintiff) being heard. ”[10]

 

[38]      In the circumstances of the present case, the question is whether the defendant has discharged his onus of showing the existence of a prima facie case. In my view he has. Constable Mashaba received information shortly after the crime was committed. He followed it up, in hot pursuit, and found the plaintiffs inside the motor vehicle which had been described to him, with the same registration number, and the red paint marks on it from the collision with another motor vehicle as alleged.  This led him to a suspicion, reasonable in my view, that the plaintiffs had committed robbery, an offence listed in Schedule 1.

 

[39]      Discernible from the defendant’s amended plea , as well as the facts before this Court, and the evidence presented, is that although the defendant relied on an incorrect provision of the Act, the arresting officer entertained a reasonable suspicion and exercised his discretion in accordance with that suspicion.  I am of the view that the plaintiffs have a case to answer. The application must therefore fail.

 

Order

 

[40]      In the result, the following order is made:

 

1.    The application for judgement against the defendant is refused.

 

2.    The trial shall proceed on the merits.

 

S MFENYANA

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

 

 

 

APPEARANCES

DATE OF HEARING:	08 & 09 NOVEMBER 2022
JUDGEMENT RESERVED:	09 NOVEMBER 2022
DATE OF JUDGEMENT:	03 March 2023
For the Plaintiffs:	Adv. O.C Legae
Instructed by:	Tshabalala OJ Attorneys
c/o:	Ntsamai Attorneys
Email:	oentsamai@gmail.com
For the Defendant:	Adv. T Masike
Instructed by:	State Attorney, Mahikeng
Email:	masike.masike@gmail.com

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