Diale v Minister of Police and Another (382/2019) [2023] ZANWHC 65 (29 May 2023)

IN THE NORTH WEST HIGH COURT, MAFIKENG

CASE NO: 382/2019

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

In the matter between:

LENGOPE MICHAEL DIALE

Plaintiff

and

MINISTER OF POLICE

1st Defendant

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS 2nd Defendant

JUDGMENT

This judgment was handed down electronically by circulation to the parties or parties' representatives by email. The date and time for the hand down is deemed to be 29 May 2023.

MONGALE AJ

INTRODUCTION

[1] Before me is an action for damages instituted by the plaintiff against the first and second defendants. In Claim A, the plaintiff instituted an action against the Minister of Police, the first defendant herein, in which he claimed damages for unlawful arrest and detention and in Claim B, the plaintiff instituted an action against the National Director of Public Prosecutions, the second defendant, for malicious prosecution. The plaintiff has since withdrawn his claim against the second defendant and when this matter appeared before me for trial, it was only against the first defendant.

[2] The parties have agreed to separate merits and quantum as per their pre-trial minutes dated 16 September 2022. At the trial of this matter only the issue of liability had to be determined by this Court, since this Court ordered that merits and quantum be separated in terms of Rule 33(4) of the Uniform Rules of Court.

[3] In his opening address, Counsel for the plaintiff, Mr Maphutha, informed the Court that the only issue regarding the arrest of the plaintiff is its lawfulness. This was confirmed by Counsel for the first defendant, Mr Mmolawa. The plaintiff's claim for his alleged unlawful arrest and detention by the first defendant is from 08 February to 11 September 2017. The plaintiff has since passed away after the close of pleadings.

EVIDENCE

[4] In order to prove the lawfulness of the arrest, Mr Mmolawa called Captain Carl Mokhutswane (The captain). His evidence can be briefly summarised as follows:

4.1 He is stationed at Hebron police station but in 2017 he was stationed in Klipgat. He has been in the employ of the first defendant for the past 20 years.

4.2 He was on stand-by duty on Wednesday 08 February 2017 at Klipgat police station and went to the Community Service Centre (CSC) to sign for the police dockets that were opened the previous day and the morning of the 8th February, to attend to them as it was the responsibility of the police officer on seven-day stand-by duty to attend to such dockets;

4.3 Among these dockets, there was one from Madidi village and the complainant in that matter was one Mr Chibogo. After perusing the docket, the captain called Mr Chibogo to enquire about his whereabouts in order to meet with him. Mr Chibogo gave the captain his address and the captain went to Mr Chibogo to interview him. Mr Chibogo confirmed that what is contained in his statement, is how he narrated it to the police at the CSC when he opened the case of assault against the plaintiff.

4.4 The captain asked Mr Chibogo where he was injured and he told the captain that it was on his left arm, which according to the captain's observation, was swollen. The arm also had an open wound that showed that it bled. The captain asked him who inflicted those injuries to him and he said it was someone known as "Blof', who is known in the community. He knew where the person stays and the captain asked Mr Chibogo to accompany him to Blof's place of residence.

4.5 Mr Chibogo told the captain that the injuries were inflicted by Blof who was using nunchakus. They went to Blof's place of residence. Upon their arrival, they found the plaintiff and Mr Chibogo identified the plaintiff as Blof, the person who allegedly assaulted him.

4.6 The captain introduced himself to the plaintiff and asked if he knew Mr Chibogo and the plaintiff confirmed. The captain informed the plaintiff that he was arresting him for assaulting Mr Chibogo and he proceeded to read him his Constitutional rights. He requested the plaintiff to lock the house and to bring along the nunchakus that he used to assault Mr Chibogo with, but the plaintiff denied knowledge of any nunchakus used to assault Mr Chibogo. At the police station, the captain informed the plaintiff of his Constitutional rights once again and the plaintiff confirmed that he understood them and he appended his signature on the document and kept a copy with him. The plaintiff was charged with assault with intent to do grievous bodily harm (GBH), detained and told that he would appear in court the following day, on 09 February 2017.

4.7 It was important to detain the plaintiff because of the injuries that Mr Chibogo sustained, which according to the captain were serious. He exercised his discretion and decided to detain the plaintiff.

4.8 Mr Chibogo was given a J88 medical form to take to the doctor but he does not know what Mr Chibogo did with it, because after a while when he went to the hospital to check the J88 in the file, he could not find it. He went back to enquire from Mr Chibogo about the J88 and Mr Chibogo could not remember what happened to the J88.

4.9 He is aware that the plaintiff had a mental condition, but only became aware of it at the time when Advocate Legodi gave him a document to take to George Mokhari hospital for the assessment of the plaintiff. The plaintiff was not assessed and he took him back to police cells, so that he could be further detained.

4.10 During cross examination, the captain indicated that Mr Chibogo went to the police station to lay a complaint against the plaintiff because that is the standard procedure to be followed when opening a case against individuals.

4.11 He confirmed that after receiving police dockets, he called Mr Chibogo to verify the complaint and ended up at Mr Chibogo's place where he confirmed his injuries and how they were inflicted. Mr Chibogo told him that he did not have a witness because the assault took place out in the street and it were only the two of them.

4.12 He took the decision to arrest the plaintiff after noticing the visible injuries sustained by Mr Chibogo that were allegedly inflicted by the plaintiff.

4.13 He denied that he had already made the decision to arrest when he left the police station, and that he did not make any further investigations after the case docket was opened. He was referred to an entry dated 08 February 2017 and it was put to him that he had already taken a decision to arrest the plaintiff whilst at the police station, which the captain denied.

4.14 The captain conceded that Mr Chibogo did not mention nunchakus in his statement as the object that was used to assault him, but mentioned that it was during his interview with Mr Chibogo. He was referred to paragraph 3 and 4 of Mr Chibogo's statement, where he mentioned a stick and not nunchakus. He however denied that he was fabricating his version about the alleged assault and the alleged weapon used.

4.15 He was further referred to his arrest statement which does not mention the weapon or object used to assault Mr Chibogo. The captain maintained that the purpose of his interview was for Mr Chibogo to explain to him what happened to him and how it happened, to end up him being assaulted.

4.16 He says it was not surprising for Mr Chibogo not to seek medical help because the interview took place a day after the incident and that Mr Chibogo was probably not bleeding as he did on the day of the incident. He however maintains that an object was used to assault Mr Chibogo, and that Mr Chibogo complained of pains and sustained a serious injury on his arm, it was an assault that is classified as GBH. He therefore used his discretion to arrest the plaintiff and detained him.

4.17 From his recollection the plaintiff was arrested for 6 months. He denied that it is because of his conduct that the plaintiff remained in custody for a period of 6 months and that the first defendant must be held accountable for such incarceration.

4.18 The captain could not remember the section from the Criminal Procedure Act ("CPA") that empowered him to arrest the plaintiff. It was put to him that he exercised powers in accordance with section 40 of the CPA to arrest and he must have had a warrant to arrest. This was denied by the captain who said that it is not in all circumstances where he should have a warrant before arresting a suspect. He maintained that the visible injuries that Mr Chibogo sustained propelled him to arrest the plaintiff.

4.19 It was put to him that he didn't have the J88 medical form, therefore there was no evidence for him to arrest. He maintained that the fact that Mr Chibogo did not go to hospital after he was given the J88 does not mean that he did not sustain injuries, it only means that he failed to go to be examined at the hospital by the doctor.

4.20 According to the captain, it was not in his powers to further detain the plaintiff after the plaintiff's first appearance on 09 February 2017.

[5] The second witness called by the first defendant is Reginald Maake.

His testimony is summarised as follows:

5.1 He has been a public prosecutor for eight years and he was the one prosecuting on behalf of the State on 09 February 2017, when the plaintiff appeared before the magistrate;

5.2 Upon the plaintiff's appearance and his explanation of his rights an enquiry about his previous convictions was made. The presiding officer and Mr Maake noticed a peculiar behaviour displayed by the plaintiff that made them to conclude that the plaintiff might be having a mental condition;

5.3 He does not remember if it's him who requested the court to postpone the matter in terms of section 50(6) of the CPA or the magistrate out of his own accord. The plaintiff informed the court that he was receiving his medication from Madidi clinic. The matter was then postponed in custody to obtain the medical reports of the plaintiff. Mr Maake was referred to the evidence, which shows that the plaintiff was treated at Madidi clinic on 17 May 2007 for a mental condition;

5.4 The aspect of bail could not be entertained after realising the plaintiff's mental condition. The State wanted to investigate if

there was any relation between the crime allegedly committed by the plaintiff and his mental condition. The matter was postponed in terms of section 50(6) of the CPA to establish if he has a mental condition. The State feared any potential harm that might occur, hence bail could not be entertained at that stage. The plaintiff had to remain in custody throughout until his assessment was completed and it is upon the completion of his mental evaluation that bail could be entertained;

5.5 After the evaluation report, the plaintiff had to satisfy the court that it was in the interest of justice to be released on bail

because he had previous convictions, which made the offence he was charged with, assault GBH, a Schedule 5 offence;

5.6 From 9 February 2017, the matter was postponed on several occasions and different reasons such as incomplete and further investigations, for case docket, for the plaintiff's family to avail the plaintiff's health records to the State, for the State to write a letter to the hospital requesting the mental evaluation of the plaintiff, and for bed until 26 July 2017 when the magistrate was informed that a bed was finally available;

5.7 On 03 July 201 7, the plaintiff appeared before court and was requisitioned to attend a 30 days mental evaluation. The matter was postponed to 04 September 2017. On 04 September 2017, the report was available with the medical finding that the plaintiff suffered schizophrenia, but he could stand his trial. The bail was opposed by the State because the plaintiff was charged with a Schedule 5 offence, and the matter was postponed to 11 September 2017 for bail application. On this date, the State indicated that it was no longer opposing bail and the plaintiff was warned for the next court date.

5.8 Under cross examination, he indicated that his role as a prosecutor is to make sure that all the facts relevant for the court to consider are placed before the court. He mentioned that after reading the plaintiff's docket he was satisfied that there was prima facie case against the plaintiff, and that the identity of the plaintiff was not in dispute since the alleged assault took place during the day. He said from the contents of Mr Chibogo's statement, he had no doubt that the alleged offence was committed. He had no reason to doubt the evidence in the docket;

5.9 On the issue of the plaintiff's medical condition, Mr Maake testified that he could not have relied on the plaintiff's word of mouth that he was taking medication for his mental condition. The court had to be satisfied that the plaintiff will be able to follow and understand the proceedings;

5.10 When asked why the State did not verify the contents of the statement before deciding to prosecute the plaintiff or putting the ball in motion, he testified that there was a prima facie case, which was not necessarily a winnable case, but that there was an allegation against the plaintiff that called for an answer;

5.11 He maintained that it was necessary for the State to protect the plaintiff and members of the public by keeping the plaintiff in custody until his mental evaluation was finalised. He said it was necessary to follow the procedure and postpone the matter in terms of section 77-78 and section 60(4) of the CPA. The plaintiff had to be kept in custody for as long as he was waiting for bed to be available.

[6] The last witness called by the State is Kgalalelo Jessica Molefe, whose evidence can be summarised as follows:

6.1 She is currently a State Advocate but during 2016 and 2017 she was a prosecutor at Odi Magistrates court. On 24 March 2017 when the plaintiff appeared in court, she was the prosecutor in charge but before she got involved, the entire process had already started. Before the plaintiff was referred for mental observation, the magistrate did make some mental assessment.

6.2 During cross examination she agreed that, but for the arrest and appearance of the plaintiff, he would not have undergone the whole process of mental observation, but that the Court should decide on the lawfulness of the arrest and detention.

[7] The defendant closed its case after leading the evidence of his third witness and Mr Maphutha closed the plaintiff's case without leading any witness, on the basis that the plaintiff is now deceased and there is no other witness to call.

CLOSING SUBMISSIONS

[8] In his closing submissions, Mr Maphutha, mentioned that the plaintiff's claim is based on the following grounds:

(i) That the arresting officer arrested the plaintiff and charged him with assault GBH without any medical evidence to support the complaint that the complainant sustained serious injuries;

(ii) That the arresting officer failed to investigate the circumstances of the alleged assault at the time, whether the alleged injury, if any, was inflicted intentionally or not, or whether it came about accidentally during the scuffle;

(iii) That the police failed to investigate the nature and the seriousness of the injuries up until the date of the trial;

(iv) That the police when arresting the plaintiff refused to adhere to the plaintiff's request to make a statement in the docket;

(v) That the police at the opening of the docket were aware that a crucial piece of evidence, namely the J88 medical report evidencing the injuries, is not in the docket;

(vi) That the arresting officer failed to consider other alternative options rather than arresting and detaining the plaintiff. In particular that the plaintiff and complainant were neighbours, possible mediation by tribal authorities could have been explored;

(vii) That the arresting officer failed to investigate the circumstances of the assault incident scene and deliberately ignored the complaint of the plaintiff that the complainant also damaged his property by breaking his windows pane when this was apparent to him.

[9] The plaintiff's closing submissions can further be summarised as follows: That it is immaterial to have called and led the evidence of the prosecutors to address the issue of arrest and subsequent detention. That the decision to arrest the plaintiff was done by the arresting officer, at the police station and before any investigation was conducted. The point of reference of Advocate Maphutha is the investigation diary.

[10] That the defendant cannot argue that it was possessed of sufficient facts to effect the arrest at the time of arresting the plaintiff, and that the arresting officer abused his position by failing to critically analyse the facts and failing to entertain a reasonable suspicion that the crime was committed before arresting the plaintiff.

[11] That the argument of the first defendant is legally wrong when saying that the offence allegedly committed by the plaintiff is a Schedule 5 offence and that the arresting officer used a drastic method of bringing the plaintiff before the Court.

[12] The plaintiff contends that the first defendant failed to satisfy the jurisdictional facts as outlined in section 40(1)(b) of the CPA. The plaintiff avers that at the time of arrest, the arresting officer was not possessed of sufficient facts to entertain a suspicion that the plaintiff committed an offence referred to in Schedule 1 ; that the suspicion did not rest on any reasonable grounds, due to lack of factual basis and that the arresting officer did not exercise a true and bona fide discretion within the meaning of section 40(1)(b) of the CPA.

[13] Mr Maphutha further avers that at the time of arrest, no proof of injuries was made available to the arresting officer in the police docket as such, when the arresting officer exercised his discretion and decided to arrest, he did that not in good faith, not rationally but arbitrary. That the arresting officer was malicious when testifying that he saw serious injury which the complainant failed to have examined and recorded in the J88 report. He further submitted that the fact that the complainant mentioned to the arresting officer that he was in pain, the arresting officer could not tell if such pain was moderate, minor or excruciating.

[14] According to the plaintiff, this Court must determine whether or not the facts justified the arrest. Mr Maphutha avers that the arresting officer did not exercise an objective standard of the reasonable person when arresting the plaintiff.

[15] That the arresting officers are enjoined in law to strike a balance between the explanation provided by the plaintiff and the need to arrest, and if at the end the reasonable person is confronted with the same set of facts, form a suspicion that the arrestee has committed an offence, only then can the suspicion be reasonable.

[16] Mr Maphutha further contends that the plaintiff could not have been incarcerated, but for the unlawful arrest by the arresting officer. He referred the Court to De Klerk v Minister of police [2019] ZACC 32, para 24; Minister of Police v Skosana 1977 (1) SA 31(A) and related judgments in canvassing his argument, that the first defendant's unlawful conduct caused or materially contributed to the harm, which is the prolonged seven months detention period of the plaintiff.

[17] On the other hand Mr Mmolawa, on behalf of the first defendant, contends that by failing to adduce any evidence to rebut the first defendant's case, the plaintiff has strengthened the first defendant's case and his case stands to be dismissed with costs. Further submissions by the first defendant can be summarised as follows:

[18] That the first defendant has satisfied the jurisdictional requirements as contained in section 40(1)(b) of the CPA and that the only issue to be decided by this Court is whether the arresting officer properly exercised the discretion vested in him as required by the law to arrest and detain;

[19] That there is no evidence to support the allegation that in arresting the plaintiff, the captain exercised a discretion conferred by section 40(1 )(b) of the CPA in bad faith, irrationally or arbitrary. The captain observed that Mr Chibogo had serious injuries at the time he interviewed him and decided to arrest the plaintiff for assault GBH, as it is a serious offence. Reference was made to Naidoo v Minister of Police 2016 (1) SACR 468 (SCA) @ paragraphs [40] and [41] where the court held: “..and, as was explained by Van Heerden JA in Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818G — H, once the jurisdictional requirements of the section are satisfied, the peace officer may, in the exercise of his discretion, invoke the power to arrest permitted by the law. However, the discretion conferred by as s40(1) of the CPA must be properly exercised, that is, exercised in good faith, rationally and not arbitrary. If not, reliance on s40(1) will not avail the peace officer. It is now settled that the purpose of the arrest is to bring the arrestee before the court for the court to determine whether the arrestee ought to be detained further, for example, pending further investigations or trial. Thus, it goes

without saying that an arrest will be irrational and consequently unlawful if the arrestor exercised his discretion to arrest for a purpose not contemplated by law”.

[20] That the arrest and detention of the plaintiff in respect of the first period was lawful and justified.

[21] With regard to the second period of detention, Mr Mmolawa contends that there is overwhelming evidence that the captain's arrest of the plaintiff and overnight detention did not cause or influence the decision that led to the plaintiff's second period of detention. He maintains that this was caused by the decisions of the court and/or public prosecutors at that time. He supported his argument by referring the Court to the first defendant's plea, which disputed liability for the continued detention of the plaintiff beyond 09 February 2017, and that the first defendant achieved his purpose when arresting the plaintiff and ensuring that the plaintiff appears in court on 09 February 2017 to be dealt with in terms of the law.

[22] He referred this Court to Woji v Minister of Police [2014] ZASCA 108, 2015 (1) SACR 409 (SCA) where the court held that the Minister was liable for post appearance detention where the wrongful and culpable conduct of the police had materially influenced the decision of the court to remand the person in question in custody. The court further held that culpable conduct of the investigating officer consisted of giving false evidence during the bail application, causing the refusal of bail and resultant deprivation of liberty. Mr Mmolawa contends that in casu, there is no shred of evidence that the captain's conduct materially influenced the decision of the court to remand the plaintiff in custody, which was the decision taken by the court and prosecutors, after the plaintiff exhibited signs of a mental condition in court upon his first appearance.

[23] Counsel further referred the Court to Mahlangu and Another v Minister of Police [2021] ZACC 10, 2021 (2) SACR 595 (CC), where the accused persons were refused bail after their first appearance as a result of the conduct of the investigating officer, who misrepresented the true state of affairs to the public prosecutor in failing to inform the public prosecutor that the confession of one of the accused persons, which was used as a basis to arrest the other accused person, was obtained through torture and coercion.

[24] Mr Mmolawa contends further that the captain played no role in the order of the court to detain the plaintiff further, who was detained for the purpose of enquiring into his ability to follow court proceedings and to contribute meaningfully to his defence in terms of sections 77, 78 and 79 of the CPA.

[25] This Court was referred to Minister of Safety and Security v Tyokwana 2015 (1) SACR 597 (SCA), where the liability of the police post hearing detention was based on the fact that the police failed to inform the prosecutor that the witness statements implicating the accused was obtained under duress, which was recanted and consequently there was no credible evidence linking the accused to the crime. The first defendant's further submission is that in casu, when the captain perused the docket, he found the statement of Mr Chibogo who indicated that he was assaulted by the plaintiff and he also observed some injuries on Chibogo's left arm. Mr Mmolawa further referred this Court to the evidence of the second witness who testified that upon perusal of the docket, he independently concluded that there was prima facie case to be answered by the plaintiff or credible evidence linking the plaintiff to the crime he was charged with.

[26] Lastly, Mr Mmolawa submitted that no unlawful conduct on the part of the captain influenced the decisions that led to the second period of detention, which was motivated by the conduct of the plaintiff.

THE LAW AND ITS APPLICATION TO THE FACTS

The arrest

[27] What this Court should consider is whether or not the first defendant managed to prove the lawfulness of the plaintiff's arrest and detention, until the plaintiff was released on 11 September 2017.

[28] With regard to the arrest of the plaintiff, the submissions by the plaintiff's counsel as outlined above, is that the first defendant failed to prove the lawfulness of the plaintiff's arrest whereas the counsel for the first defendant contends that the first defendant, through the evidence of the captain, managed to prove the lawfulness of the plaintiff's arrest.

[29] The captain testified that upon reading Mr Chibogo's statement, which mentioned the assault and the name of the culprit, he went to Mr Chibogo's physical address to confirm the allegations contained in the statement and Mr Chibogo did confirm the allegations as per his statement. He further testified that Mr Chibogo had an open wound which showed that it bled. After Mr Chibogo confirmed that it was Blof who assaulted him, they went to Mr Blof's place, who we now know that it is the plaintiff.

[30] The issues are whether the captain had a reason to arrest, whether his decision to arrest was justified and whether his discretion to arrest was exercised arbitrary, irrationally and not in good faith. The first defendant's defence and basis of arresting the plaintiff is based on section 40(1)(b) of the CPA, which provides that;

40 (1) 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.

[31] The jurisdictional requirements for s 40(1)(b) defence are: (i) the arrestor must be a peace officer; (ii) the arrestor must entertain a suspicion (iii) the suspicion must be that the arrestee committed an offence referred to in Schedule 1 and (iv) that the suspicion must rest on reasonable grounds. According to counsel for the first defendant, all jurisdictional facts have been satisfied, which is disputed by Mr Maphutha, who argued that the arresting officer did not entertain a suspicion that the arrestee committed a Schedule 1 offence.

[32] In Biyela v Minister of Police (1017/2020) [2022] ZASCA 36; 2023(1) SACR 235 (SCA) (1 April 2022), the SCA at paragraph 33 and 34 held that the question whether a peace officer reasonably suspects a person of having committed an offence within the ambit of s40(1 is objectively justifiable. The suspicion need not be based on information that would subsequently be admissible in a court of law. The court further held that the standard of a reasonable suspicion is very low, it must be more than a hunch, and should not be an unparticularized suspicion. It must of course be based on specific and articulable facts or information.

[33] After reading the docket that a Schedule 1 offence was committed, the captain proceeded to Mr Chibogo's place of residence to interview and to satisfy himself about the contents of Mr Chibogo's statement. After confirming the alleged assault, the injuries and the alleged perpetrator, the captain had a reasonable suspicion that a Schedule 1 offence was committed by the plaintiff. Whether this information would later, in a court of law, be found to be inadmissible is irrelevant for the purpose of the arresting officer's reasonable suspicion.

[34] One of the grounds upon which the plaintiff's claim is based is that upon the plaintiff's arrest, the police refused to adhere to his request to make a statement in the docket. In the plaintiff's warning statement which forms part of the first defendant's discovered bundle, it is recorded that "the plaintiff mentioned that he admits the alleged charge against him however, he elected to elaborate further before the court”. This statement was left unchallenged by the plaintiff despite the fact that the arresting officer was referred to it. This is corroborated by the plaintiff in one of his other grounds for his claim, when stating that the arresting officer failed to investigate

the circumstances of the assault incident scene, and the fact that the complainant also damaged his property.

[35] The arresting officer satisfied himself that at the time when he arrested the plaintiff, Mr Chibogo knew his assailant because he subsequently positively identified him. I therefore find that the arresting officer did entertain a reasonable suspicion that a Schedule 1 offence was committed.

[36] Once all the jurisdictional facts have been established, the discretion on whether to arrest or not arises and what needs to be determined now is whether or not the discretion to arrest by the arresting officer was properly exercised. Minister of Safety and Security v Sekhoto and Another 2011 (5) SA 367 (SCA) @ para 28.

[37] In Raduvha v Minister of Safety and Security and Another [2016] ZACC 24 at paragraph 42 the Constitutional Court held that: "section 40(1) of the CPA states that a police officer "may" and not "must" or shall arrest without a warrant any person who commits or is reasonably suspected of having committed any of the offences specified therein. In its ordinary and grammatical use, the word "may" suggest that police officers have a discretion whether to arrest or not. It is permissive and not peremptory or mandatory. This requires police officers to weigh and consider the prevailing circumstances and decide whether an arrest is necessary. No doubt this is a fact-specific enquiry. As the police officers are confronted with different facts each time they effect an arrest, a measure of flexibility is necessaty in their approach to individual cases. Therefore, it is neither prudent nor practical to try lay down a general rule and circumscribe the circumstances under which police officers may or may not exercise their discretion. Such an attempt might have the unintended consequence of interfering with their discretion and, in the process, stymie them in the exercise of their powers in pursuit of their constitutional duty to combat crime".

[38] Although the Constitutional Court held that, when performing their duties, the police officers are allowed to be flexible and that it is not practical to attempt to prescribe rules that should be followed by police officers when exercising their discretion to arrest, at paragraph 43, the Constitutional Court found that "the courts should have gone further in their evaluation of the evidence to determine whether the facts justified an arrest. This, the CC held that it is necessary to do because arrest is a drastic invasion of a person's liberty and an impairment of their rights to dignity both of which are enshrined in the Bill of Rights".

[39] The Constitutional Court clarified this aspect and further held that the courts should enquire whether in effecting an arrest, the police officers exercised their discretion at all. And if they ever did, whether they exercised it properly. It is the captain's evidence that after reading the case docket, he went beyond to satisfy himself that an offence was committed, hence he went to interview Mr Chibogo and they ended up at the plaintiff's house.

[40] However, this Court must satisfy itself that the facts justified the plaintiff's arrest and that the discretion exercised by the arresting officer was done properly. The arresting officer was referred to the investigation diary and it was put to him that a decision was already taken by him to arrest the plaintiff at the police station, before the arresting officer went to interview Mr Chibogo. However, the arresting officer was not referred to a specific entry that seems to support that proposition. Be that as it may, there are two different handwritings entries dated 08 February 2017, which is the day of the arrest of the plaintiff. The first entry speaks about a preliminary investigation that will be done and interviewing of the complainant that will take place whereas the second entry seems to be an instruction given to one W/O Mokhutswane to investigate further; visit and interview the complainant and the witnesses if any, and to trace "Blof' and arrest him.

[41] This Court was unfortunately, left to guess and make sense out of this document, without counsel for the plaintiff assisting it through thorough cross-examination of the captain to support the plaintiff's proposition or conclusion. Counsel for the plaintiff ought to, at least, have taken this Court into his confidence to explain either in his written or oral submissions, what made him to conclude that the decision to arrest was already taken at the police station, before Mr Chibogo was interviewed because the document that the captain was referred to does not support the plaintiff's proposition. The question is who took that decision to arrest at the police station, is it the arresting officer or someone else, did the arresting officer act upon such instruction and went to arrest, and was there preliminary investigation first done as per the entry before the arrest was done? These are some of the questions that this Court was left to answer by itself without any assistance from the plaintiff. This Court could therefore not read much into this document.

[42] Although in the case of an allegation of an unlawful arrest, the onus is on the defendant to prove the lawfulness of the arrest, there is no evidence before this Court to rebut the version of the arresting officer.

[43] Before the arresting officer arrested the plaintiff, he had the following facts at his disposal. He read Mr Chibogo's statement who alleged to have been assaulted by Blof; he went to interview Mr Chibogo who had visible injuries and confirmed that he was assaulted by Blof; they went to Blof's place of residence and Mr Chibogo identified Blof as his assailant. The arresting officer was satisfied that an offence of assault GBH has been committed by the plaintiff that called for his arrest. This was confirmed by the public prosecutor who put the charge of assault GBH to the plaintiff upon his first appearance. The arresting officer could therefore not have employed another way of securing the attendance of the plaintiff in court other than arrest.

[44] I am satisfied that the evidence presented before this Court shows that the arresting officer entertained a reasonable suspicion and had reasonable grounds to believe that a Schedule 1 offence was committed by the plaintiff. Similarly, there is no evidence before this Court showing that the arresting officer did not exercise his discretion fairly and in a proper manner. As a result, I am of the view that the first defendant has discharged the onus and established that the arrest of the plaintiff was lawful in accordance with the provisions of section 40(1) of the CPA.

The detention

[45] What needs to be determined is whether the first defendant is liable for the detention of the plaintiff from 09 February until 14 September

2017 when he was released on warning.

[46] It is trite that powers to arrest and detain a suspect are distinct and are exercised independently from each other. In Mvu v Minister of Safety and Security and Another 2009 (6) SA 82 (GSJ) the court at paragraph 9 held that "the claim is based not only on an alleged unlawful arrest but also upon alleged unlawful detention. That there is an important distinction between the two is, in my respectful opinion, not properly understood by many and it is not only police officers who have erred in this regard”.

[47] During his examination in chief the captain was asked after arresting the plaintiff, why he did not issue the plaintiff with a summons or written notice to appear in court. He responded to the effect that due to the seriousness of the offence he could not issue a written notice or summons and release the plaintiff.

[48] The question is whether the captain, when detaining the plaintiff, applied his mind properly by considering all the relevant facts before detaining the plaintiff and whether the decision to detain the plaintiff was unjustified. As mentioned above, the captain was asked why he did not issue a warning for the plaintiff to appear in court the following day and he indicated that the seriousness of the offence propelled him to detain the plaintiff. This implies that the captain was mindful of his discretionary powers that he had regarding the detention of the plaintiff, but exercised his discretion in favour of arresting the plaintiff due to the nature of the offence allegedly committed by the plaintiff.

[49] Mr Mmolawa denies any liability for the continued detention of the plaintiff, after his first appearance on 09 February 2017. According to Mr Mmolawa, the first defendant managed to prove that the decision to further detain the plaintiff was not caused by the plaintiff's arrest by the arresting officer, but rather an independent decision that was taken by the court and/or public prosecutors who dealt with the plaintiff in terms of the law.

[50] In De Kierk v Minister of Police 2021 (4) SA 585 (CC) (22 August 2019) the Constitutional Court held:

[13] A delict comprises wrongful, culpable conduct by one person that factually causes harm to another person that is not too remote. When the harm in question is a violation of a personality interest caused by intentional conduct, then the person who suffered the harm must institute the action iniuriarum (action for non-patrimonial damages) to claim compensation for the non patrimonial harm suffered.

[51] The Constitutional Court further remarked that:

[24] Causation comprises a factual and legal component. Factual causation relates to the question whether the act or omission caused or materially contributed to the harm. If, but for a wrongdoer's conduct, the harm would probably not have been suffered by a claimant, then the conduct factually caused the harm.

[52] In casu, the question that this Court should ask is, whether there was any wrongfulness in the conduct of the first defendant in arresting and detaining the plaintiff, for this Court to find that the subsequent detention by the plaintiff caused any harm to him that requires compensation of some sort?

[53] In Minister of Police and Another v Erasmus (366/2021) [20221 ZASCA 57 (22 April 2022) at paragraph 12 the SCA held that: "when the police wrongfully detain a person, they may also be liable for the post-hearing detention of that person-the cases show that such liability will lie where there is proof on a balance of probability that (a) the culpable and unlawful conduct of the police, and (b) was the factual and legal cause of the post-hearing detention. The court found that no unlawful conduct of the police influenced the decisions that led to the second period of detention. The post detention of Mr Erasmus was caused by the effect of s60(11)(b) of the CPA and the independent decision of the prosecutor to oppose bail. Similarly, in casu, although the plaintiff was charged with a Schedule 1 offence, his previous convictions made his offence a Schedule 5 offence, the court was obliged to detain him until he was dealt with in terms of the law.

[54] As a result, the second witness indicated that even if the court did not suspect that the plaintiff might be having a mental condition, the plaintiff would have been kept in custody to satisfy the court that it was in the interest of justice to be released on bail. Furthermore, the second witness testified that he was satisfied that there was a prima facie case against the plaintiff. This means that if the prosecutor was not satisfied that there was a case of assault GBH for the plaintiff to answer, he would have withdrawn charges against the plaintiff or if he felt that a lesser charge of assault common was appropriate, he would have put that lesser charge against the plaintiff.

[55] It was also the decision of the second witness who is required by the law to bring the behaviour of the plaintiff to the attention of the court, so that the plaintiff could be dealt with accordingly and his case be postponed in terms of the relevant provisions of the CPA. The second witness further testified that he could not have relied on what the plaintiff said, the court needed to satisfy itself that the plaintiff was able to follow the proceedings and understood the charge put to him.

[56] I do not have a reason not to find the evidence of the second witness to be credible, true and acceptable. I am therefore of the view that there was no wrongfulness done by the first defendant when arresting and detaining the plaintiff. It is my view further that, the further detention of the plaintiff beyond his first appearance was motivated by the behaviour that he displayed before the Magistrate.

[57] I have been requested to prepare a written judgment to bring to the attention of the Minister of Justice and Constitutional Development and to the Minister of Health the plight and quandary of mentally challenged people within the criminal justice system, including the alleged ordeal of the plaintiff who remained in custody for seven months whilst waiting for a bed. All that can be said is that since the court cannot find the first defendant liable for the detention of the plaintiff and since I am of the view that the NDPP and the Magistrate was justified in detaining the plaintiff beyond his first appearance, this Court does not have any basis to address the plaintiff's counsel's request in this judgment.

[58] I am of the view that the first defendant was able to prove the lawfulness and justification of the plaintiff's detention from 08 February to 11 September 2017.

COSTS

[59] Ordinarily costs should follow the result. However, from Mr Maphutha's address, the plaintiff was a man of straw and he was also staying alone in an RDP house.

[60] I have also taken into consideration that the first defendant might not be able to recover costs from the plaintiff's

estate. In exercising my discretion, I am therefore of the view that there should be no order as to costs.

ORDER

[61] Consequently, I make the following order:

1 . The plaintiff's claim of unlawful arrest and detention against the first defendant for the period between 08 February and 11 September 2017 is dismissed.

2 Each party to pay its own costs.

K MONGALE

JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

APPEARANCES

For the Plaintiff Adv MAPHUTHA Instructed By R.A MOSWEU ATTORNEYS C/o Mokhetle Inc. 18 Havenga Street Golf view Mahikeng For the Defendant Adv MMOLAWA Instructed by STATE ATTORNEYS

Mega City Mmabatho