Kleynhans v Minister of Police and Another (1517/12) [2014] ZANWHC 18 (1 August 2014)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE NORTH WEST HIGH COURT

MAFIKENG

CASE NO.: 1517/12

In the matter between:

JAN WILLEM FREDERICK KLEYNHANS..........................................................................Plaintiff

and

MINISTER OF POLICE................................................................................................. 1ST Defendant

CONSTABLE GIFT JOSEPH MERAFE..................................................................... 2ND Defendant

CIVIL MATTER

KGOELE J

DATE OF HEARING : 06 MAY 2014

DATE OF JUDGMENT: 01 AUGUST 2014

FOR THE PLAINTIFF : Adv. Scholtz

FOR THE RESPONDENT : Adv. Masilo

JUDGMENT

KGOELE J:

[A] INTRODUCTION

[1] The plaintiff in this matter instituted an action for damages in an amount of R2000 000-00 against the first and second defendants based on an alleged wrongful detention and arrest.

[2] The allegation in the particulars of claim are that on the 10 March 2012, at Zeerust, the first defendant, alternatively the second defendant, further alternative, the first and the second defendant and or any other members of the first defendant wrongfully and maliciously arrested the plaintiff for an alleged “hit and run” accident, without a warrant of arrest. As a result the plaintiff was detained in the Zeerust holding cells from 9h00 – 14pm on the same day, at the instance of the police officers Constable Gift Joseph Merafe and/or Captain George Mokgotsi and various other police officers whose names and ranks are unknown.

[3] The parties agreed at the onset of the trial that the merits should be separated from quantum. This trial therefore deals with the merits of the matter only.

[B] SUMMARY OF THE EVIDENCE

[4] The defendants bore the onus of proof, thus they began leading evidence at the beginning of the trial. The following witnesses

testified on their behalf.

Vusi William Skefu

[5] He is the victim in this matter that was allegedly hit by the car driven by the plaintiff. He was called as a witness on behalf of the defendant. He testified that on the 9/03/2012 he was riding on a bicycle along Church Street in Zeerust town around 19h10. He was travelling following a motor vehicle slightly at the back on its left hand side. When they reached the stop sign, the said vehicle just turned fast to the left hand side without indicating its intention to do so and collided with him. The car did not even stop after the collision. The police were called through the assistance of a group of people including taxi drivers who were just nearby. These people are the one that also gave him the registration number of the car that allegedly hit him as he did not see its registration number. He said that he does not remember the colour of the car that hit him but it was a bakkie.

Kagiso Abel Motsamai

[6] He is the police officer that attended the scene of accident after it was reported. He testified about how he found Mr Skefu at the scene, attended to his report and lastly, transported him to the hospital for medical attention. He finally handed the matter to the police in charge at the police station after obtaining a statement from Mr Skefu.

Mothibi George Mogotsi

[7] He is a Police Captain in the Detective Unit and is the one that arrested the plaintiff. He testified that on the 10 March 2012, he received a docket from the charge office wherein a “hit and run” case was reported. As a result of the fact that there was already a registration number of the car that was allegedly involved in the accident provided in the docket, he circulated the said number through their vehicle identification system to get the name and address of the owner. He together with the other police officers went to the address that was shown on the system and

they found Mr Jan Willem Frederick Kleynhans who admitted to the fact that the registration number they were asking about belonged to his car. When he asked him who was driving the car the previous night, he then said it was his son, the plaintiff in this matter, Jan Willem Frederick Kleynhans (Wimpie). I pause to mention that because of the fact that they share exactly the same names and surname, I will in this judgment refer to the father as Mr Kleynhans and the son who is the plaintiff, Wimpie, respectively. At that time Mr Kleynhans called Wimpie because he was not present. When Wimpie arrived, he admitted that he was the driver of the vehicle on the previous day, but disputed the fact that he knocked the victim or any person. He requested to be shown the vehicle to inspect it. Upon inspection he then realised that it was having some scratch marks on the front left part of the fender. Mr Kleynhans explained to him that they were old scratches that came with the car as he bought it second hand from another person. According to his observation the scratches did not look old as Mr Kleynhans claimed, but new. He then informed Wimpie that he has some reasons to arrest him. He explained his rights. He requested them to follow him with their vehicle to the police station. He did not cause Wimpie to drive in a police vehicle because they were co-operating and also because they had already explained to him that Wimpie was a student at a University. He handed Wimpie to Constable Merafe to charge him. According to him when he arrived at the Kleynhans home it was around 10h00 in the morning. Bail in respect of Wimpie was fixed between twelve and half past twelve. According to him he used a discretion of arresting Wimpie because he did not trust him as he was involved in a “hit and run” incident. He wanted to secure his attendance in court. He eventually appeared in court and the matter was withdrawn against him. During cross-examination he admitted that he made a mistake in relation to the time Wimpie was arrested by saying he was arrested at 10h00, when the correct time should be before 10h00 and could be around 09h00. He furthermore could not specify which section of the Road Traffic Act and/or the Regulations did he suspect the plaintiff had contravened.

Gift Merafe

[8] He is the investigating officer that was assigned to investigate this case after it was reported. He testified that on the 10 March 2012 he accompanied Captain Mogotsi when he went to arrest the plaintiff. They found his father Mr Kleynhans at his home at around 09h00. Upon arrival they explained the purpose of their visit. The plaintiff was called from the house as he was sleeping at that time because his father said he was the one that was driving his bakkie the previous day. After they received an explanation from him, Captain Mogotsi asked him to come with them to the police station. When inspecting the vehicle of his father they realised that it had fresh scratch marks although the father claimed to have been old marks. The plaintiff and his father used their own vehicle to come to the police station following theirs. At the police station they placed him in the holding cell. He completed the necessary documents that relates to the charging of the suspect. The plaintiff was accordingly charged and later given bail after he had requested a Senior Sergeant to fix the bail because Captain Mogotsi was not present. He maintained that he was not the arresting officer but Captain Mogotsi was. He himself did not have a reasonable suspicion that the plaintiff had committed an offence at that time. He said Captain Mogotsi as the arresting officer is the one that formed that opinion. The matter was taken to court but when he returned from leave he found

that it was struck off the roll. He went to the victim Mr Skefu to get the statement of his witness but the said witness could not be traced.

[9] The defendants closed their case. The following testified on behalf of the plaintiff.

Jan Willem Frederick Kleynhans (Wimpie)

[10] He testified that at the time of the arrest he was still a student at Potchefstroom University. He and his girlfriend had on the 9 March 2012 to take one of the employees to Dinokana in the late afternoon as she has missed her transport. They stopped at Zeerust Municipality in Zeerust town when they returned from there for them to buy pre-paid electricity. The time was 25 minutes past eight in the evening. At the intersection of Church and President Street, as they were travelling up President Street after crossing the intersection, there was a group of people next to where President Street start to become a one way immediately after the intersection. These people were trying to stop other cars, but as they were also in the midst of those cars, they also managed to drive through by passing them on the right hand lane. They could not see what exactly was going on there because those people were many. They proceeded home.

[11] The next day on Saturday morning whilst he was sleeping at home he received a phone call from his father between 8 and 9 a.m. His father told him that he should get dressed as he was coming from their car wash together with the police. The police

officers came driving a green Sedan vehicle and were four in number. Upon their arrival the police told them the purpose of their visit. At that time his father had already told them that he was the one that was driving the bakkie the previous night. The police then started explaining his rights without interviewing him or listening to his side of the story. They stopped them (the police) from further explaining the rights so that they can enquire from them about the further particulars of the incident they were talking about. After getting an explanation from them Captain Mogotsi pointed to the marks on his father’s bakkie. When they told them they were old marks, they started accusing them that they are resisting arrest. They arrested him and took him to the police station. He was made to sit in between the two police officers who were sitting at the back seat of the car. At the police station he was placed in the holding cell. A statement was taken from him and he was charged. He was only released at 2 o’clock upon his father paying bail. When he asked Constable Merafe whether he can have a legal representative, he said to him that the state will provide one. The bail was fixed by a police officer from Madikwe.

[12] During the night around seven o’clock on the same day Constable Merafe came to their home alone. He suggested to them to settle the matter as he had many witnesses to testify against him. He together with his father refused. On Sunday morning Constable Merafe came to their home again, this time, with the victim Mr Skefu. Mr Skefu related to them how he ended up being injured and further

told them that he will find more witnesses to make sure that he the plaintiff is found guilty.

Mr Jan Willem Frederick Kleynhans

[13] He testified that on the 10 March 2012 the police came at his business where he conducts a car-wash business at around half past eight. They came in a green sedan vehicle and they were four in number. Captain Mogotsi introduced himself to him as such and the purpose of their visit. He asked him whether he was Jan Frederick and the owner of a car with registration number H[…].

Upon answering in the affirmative he started informing him that they came to arrest him because the car was involved in a “hit and run” the previous day. He told them that his son was the one using the car the previous day but that he was surprised because his son did not tell him that he was involved in an accident. He then informed his son through a telephone that he is coming with the police as the son (plaintiff) was at their home. This was after he asked whether he can call the plaintiff to come to the car wash and Captain Mogotsi refusing him to do that saying the plaintiff will run away as he is a criminal. Upon their arrival at home plaintiff was told that he was involved in a “hit and run” matter. He then read his rights. Captain Mogotsi further inspected his car and pointed at some scratch marks on the car. When he told him that the scratch marks were old and that they had bought the car from the previous owner with

same, he then accused them of resisting arrest. He requested him and the plaintiff to accompany them to the police station.

When plaintiff wanted to drive with him in his car Captain Mogotsi and the other police officers refused. He was made to sit at the back seat of their car in between two police officers. He followed them with his own car. The plaintiff was then placed in a holding cell at the police station. At the police station he asked Constable Merafe whether they can get legal representation for the plaintiff, and Constable Merafe informed them that they will be given a legal representative of the state. The plaintiff was kept in that holding cell. He then phoned Constable Merafe after a long time seeing that nothing was happening to the plaintiff and asked whether he cannot be given bail. Constable Merafe informed him that because Captain Mogotsi was not present they are still awaiting a police officer from Madikwe to come and fix the bail. Bail was fixed at around 2 o’clock and they paid it.

[14] He further corroborated his son about Constable Merafe coming back to their house again, firstly on the same day in the evening alone and secondly, on Sunday with the victim Mr Skefu. Plaintiff closed its case without calling further witnesses.

[C] EVALUATION OF THE EVIDENCE

[15] Although there are some few discrepancies in the evidence presented for the defendants, I am of the view that there is no need to attach any weight to them as they do not relate to the consideration of the main issue before this court or whether the arrest was lawful or not. The same applies to the evidence presented on behalf of the plaintiff’s case. It is clear from the summary of the facts that it is common cause that Mr Skefu was hit by a car which he could not identify on the 9/03/12 whilst riding his bicycle. It is further common cause that after the police were summoned by the people who were nearby a case was opened at the police station of “Hit and run”. Further that, the following day on the 10th March 2012 Constable Merafe who was the investigating officer in this case, together with Captain Mogotsi and two other police officers went to the plaintiff’s home place, and in the presence of his father, arrested him without a warrant. He was further detained for some hours in the police holding cells. What remains to be looked into is whether the arrest and

detention had been lawful.

[D] ANALYSIS

[16] The plaintiff’s counsel submitted that the arrest of the plaintiff was wrong and malicious because:-

16.1 Constable Merafe and Captain Mogotsi had no reasonable suspicion that the plaintiff committed an offence;

16.2 they failed to consider the plaintiff’s explanation given that he is not guilty of the offence they were investigating;

16.3 they did not have reasonable grounds to arrest the plaintiff and did not execute their discretion properly;

16.4 they acted arbitrary as the plaintiff’s arrest had not been the only suitable way to ensure the plaintiff’s presence in court;

16.5 their conduct constituted an infringement of the plaintiff’s right not to be deprived of his freedom arbitrarily or without just cause, as entrenched in section 12(1)(a) of Act 108 of 1996.

[17] The defendant’s submissions on the other hand is to the effect that because the car which was driven by the plaintiff was around the scene of incident at the same time when the alleged offence was committed and furthermore, because he admitted driving

the said vehicle on the previous day which car had some scratch marks when inspected the following day of the incident, Captain Mogotsi suspected him of having violated the Road Traffic Act and its regulations, and that is the reason for his arrest. The other reason according to the defendants is that he had reason to believe that the plaintiff may not attend court on notice because he did not stop after the incident the previous day, hence the need to arrest him without a warrant.

[18] From the facts of this case it is clear that the defendant relied on section 40(1))(b) of the Criminal Procedure Act 51 of 1977 (The Act) as the possible basis upon which Captain Mogotsi could have arrested the plaintiff. In Duncan v Minister of Law and Order 1986 (2) SA 805 (A) it was held that the jurisdictional facts for section 40(1)(b) defense are that:-

[i] the arrester must be a peace officer;

[ii] the arrester must entertain a suspicion;

[iii] the suspicion must be that the suspect committed an offence referred to in Schedule 1, and;

[iv] the suspicion must rest on reasonable grounds.

[19] In view of the evidence of Captain Mogotsi that he actually did not know what the relevant section was which the plaintiff was charged with and only referred to as a “hit and run” case, I am of the view that no reliance can be placed on the third jurisdictional factor enlisted in paragraph 18 above to make the arrest lawful. At any rate, despite the fact that there is no case described as “hit and run” in the Road Traffic Act, none of the offences in the Road Traffic Act itself form part of Schedule 1. I fully agree with the defendants counsel that on this basis alone the arrest and detention can be regarded as unlawful.

[20] In order to determine what a reasonable suspicion is, there must be evidence that the arresting officer formed a suspicion which is objectively sustainable. It was described thus by Jones J in Mabona and Another v Minister of Law and Order and Others 1988 (2) SA 654 (SE) at 658 E-G; See also S v Purcell-Gilpin 1971 (3) SA 548 (RA) at 554 C-D.

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

[21] In Louw and Another v Minister of Safety and Security and Others 2006(2) SACR 178 (T) it was said that police officers who purports to act in terms of section 40(1)(b) should investigate the exculpatory statement offered by a suspect, before they can form a reasonable suspicion for a lawful arrest.

[22] In my view, Captain Mogotsi’s action on the particular day fell far short of the test as set out by Jones J above. From the evidence it is clear that Captain Mogotsi had no personal information of the crime being committed. The statement of the eye witness, the person whom the investigating officer and Mr Skefu alleged is the one that gave the registration number of the car belonging to the plaintiff’s father, was not yet obtained at the time of arrest. Captain Mogotsi had not yet at the least established where the information of this registration number came from. He had not even inspected the bicycle to see whether the same colour paint of the vehicle occurs on the bicycle. In fact, he never ever thought about inspecting the bicycle or enquiring about its whereabouts according to his evidence during cross examination. After receiving an explanation from the plaintiff he did not at all request the name of the previous owner of the vehicle to verify the information as he was told that the scratches he saw on the vehicle were old scratches that came with the vehicle from the previous owner. He instead, regarded himself as an expert who can be able to express an opinion on whether the scratches were old or fresh. Of significance is that Constable Merafe, the investigating officer of the same matter who was present when the scratch marks were inspected and who also saw the scratch marks, testified that he himself did not at that time suspect that an offence was committed by the plaintiff but that maybe Captain Mogotsi did, that is why he affected the arrest himself.

[23] What is further strange with the action of Captain Mogotsi in this matter is the following:-

· there was already in the case docket that was opened, a J88 of Mr Skefu indicating no serious injuries sustained by him;

· he probably knew that Mr Skefu was not hospitalized as the statement of Constable Motsamai who took Mr Skefu to hospital and opened the case docket after that was already in the docket;

· he knew already that the owner of the alleged vehicle involved in an accident was a resident of Zeerust as he had already circulated the registration number at the police station;

· he took three other police officers with him to the Kleynhans home, according to him, not to arrest but to interview the plaintiff;

· upon arrival when given an explanation by the plaintiff he rejected it outright without investigating same.

[24] Unfortunately all of the above considerations depict actions of a person already having formed a suspicion when he left the police station before he approached the plaintiff. After all it does not take four policemen to simply interview a suspect.

[25] I find the following words which was echoed in the case of Minister of Safety and Security v Glisson 2007 (1) SACR 130 (E) apposite in this matter:-

“11.5 But where a police officer had made no observation of the alleged offence at all and was obliged to rely entirely on observation of another, the offence would not be regarded as having being committed in his presence. In this kind of situation, where the arresting officer had to rely full on the report of another, there would always be a risk of him depriving a person of his or her liberty. It stands to reason that a police officer who had no personal knowledge of the alleged criminal conduct was not properly in a position to decide whether or not an offence had really been committed.”

[26] Captain Mogotsi and Constable Merafe had no personal knowledge of what transpired as they were, on their own version, not even on the scene. Not even Constable Motsamai could have been in a position to arrest the plaintiff as he hasn’t had any objective evidence that the plaintiff committed the alleged offence.

[27] Du Toit and Others in their Commentary on the Criminal Procedure Act, page 5-12 remarked as follows:-

“I am of the view that the time has come to state as a matter of law that even if a crime which is listed in schedule 1 of Act 51 of 1977 had allegedly been committed, and even if the arresting officer believes on reasonable grounds that such a crime has been committed, this in itself does not justify an arrest forthwith. Bertelsmann J stated that in each case falling within the ambit of section 40, the police are obliged to consider whether less invasive options to bring the suspect to court are available.”

[E] CONCLUSION

[28] I am of the view that the defendants failed to discharge the onus that rested upon them that the arrest and detention of the plaintiff was lawful. The actions of Captain Mogotsi were not reasonable on that particular day. The right of an individual to personal freedom is a right which should be jealously guarded. There was no urgency in the circumstances of this matter because the plaintiff had a fixed and known address. An arrest is, of course, in general, a harsher method of initiating a prosecution than citation by way of summons or a written notice to appear. In this matter, there were no circumstances at all that existed which made it lawful under section 40 of the Act to arrest the plaintiff more particularly so, without a warrant. In my view, no reliance can be placed at all on section 40 to make the arrest of the plaintiff lawful as pleaded by the defendants.

[F] ORDER

[29] The following order is thus made:-

29.1 The plaintiff is entitled to such damages that he sustained as he may be able to prove due to the unlawful arrest by the defendant;

29.2 Defendant is to pay the costs of this trial.

29.3 Quantum is postponed sine die.

________________

A M KGOELE

JUDGE OF THE HIGH COURT

ATTORNEYS:

FOR THE PLAINTIFF: Van Der Merwe & Coetzer Attorneys

C/O Labuschagne Attorneys

10 Tillard Street

MAHIKENG

FOR THE DEFENDANT : State Attorney

Justice Chambers

44 Shippard Street