Langa v Minister of Police and Others (30355/2010) [2014] ZAGPPHC 522 (25 July 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 HIGH COURT OF SOUTH AFRICA /ES

(GAUTENG DIVISION, PRETORIA)

CASE NO: 30355/2010

DATE: 25 July 2014

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

IN THE MATTER BETWEEN

SOLOMON LANGA...............................................................................................................PLAINTIFF

AND

MINISTER OF POLICE.............................................................................................. 1ST DEFENDANT

G M NEMAKULA.......................................................................................................2ND DEFENDANT

H M THEMA............................................................................................................... 3RD DEFENDANT

M R MATSIMELA.......................................................................................................4TH DEFENDANT

JUDGMENT

PRINSLOO, J

[1] The plaintiff instituted this action against the first defendant Minister and the second, third and fourth defendants, who were at all relevant times police officers acting in the course and scope of their employment, for damages flowing from alleged unlawful arrest and detention at the Polokwane police station on 19 March 2010.

[2] The amount claimed comes to R2 400 000,00.

[3] At the commencement of the trial, and after some debate and argument, I made an order separating the adjudication of the quantum from the "merits" so that the trial proceeded only on the question as to whether or not the arrest and detention (which is common cause) was unlawful in the circumstances. I also ordered that any costs flowing from the argument as to whether or not there ought to be a separation, would be costs in the cause.

[4] Before me, Mr Thaba appeared for the plaintiff and Mr Kwinda appeared for the defendants.

The pleadings

[5] The relevant paragraphs of the particulars of claim read as follows:

" 6.

On or about 19 March 2010 the second, third and fourth defendants while acting within the course and scope of their employment arrested the plaintiff and detained him in the Polokwane police cells without any charge and subsequently released the plaintiff. The certificate by the detainee is attached hereto marked annexure 'A'.

7.

Second, third and fourth defendants detained the plaintiff without warrant of arrest.

8.

The conduct of the second, third and fourth defendants amounted to unlawful arrest and/or detention.

9.

In the premises and as a result of being deprived of freedom between the time when arrested and the time when released, plaintiff suffered the following damages ..."

[6] It is common cause that the arrest was effected without a warrant.

[7] It is common cause that the plaintiff complied with the relevant statutory requirements by giving appropriate notice before

instituting action.

[8] The relevant paragraphs in the amended plea read as follows:

" 3.

Ad paragraph 6 thereof:

The contents of this paragraph are noted and save to mention that the plaintiff was arrested and detained at the Polokwane police station on charges relating to threats by assault (domestic violence) laid by the plaintiff's wife (complainant). The plaintiff was released on 19 March 2010, after the complainant withdrew charges against the plaintiff.

4.

Ad paragraph 7 thereof:

The defendants specifically plead that the plaintiff was lawfully arrested and detained in that:

4.1 the arrest and detention was carried out by a peace-officer as defined by section 1 of the Criminal Procedure Act 51 of 1977 as amended;

4.2 the arresting officer had a reasonable suspicion that the plaintiff had committed an offence, to wit domestic violence;

4.3 that further investigations be carried out under CAS no: Polokwane 612/03/2010 in order to establish the plaintiff's involvement in the alleged offence of domestic violence in the said case.

The defendants accordingly plead that the arrest of the plaintiff was lawful in terms of section 40(1)(q) of the Criminal Procedure Act as amended."

[9] The relevant provisions in section 40 of the Criminal Procedure Act 51 of 1977 ("the CPA") read as follows:

"Arrest by peace-officer without warrant

40(1) A peace-officer may without warrant arrest any person –

...

(q) who is reasonably suspected of having committed an act of domestic violence as contemplated in section (1) of the Domestic Violence Act, 1998, which constitutes an offence in respect of which violence is an element."

[10] In terms of section (1) of the Domestic Violence Act 116 of 1998 ("the Domestic Violence Act"), "domestic violence" means –

"(a) physical abuse;

(b) sexual abuse;

(c) emotional, verbal and psychological abuse;

(d) economic abuse;

(e) intimidation;

(f) harassment;

(g) stalking;

(h) damage to property;

(i) entry into the complainant's residence without consent, where the parties do not share the same residence; or

(j) any other controlling or abusive behaviour towards a complainant, where such conduct harms, or may cause imminent harm to, the safety, health or well-being of the complainant."

[11] "Economic abuse" which forms part of the definition of "domestic violence" as appears from subsection (d), is also defined as including –

"(a) the unreasonable deprivation of economic or financial resources to which a complainant is entitled under law or which the complainant requires out of necessity, including household necessities for the complainant, and mortgage bond repayments or

payment of rent in respect of the shared residence; or

(b) the unreasonable disposal of household effects or other property in which the complainant has an interest."

Brief summary of the evidence

[12] The plaintiff, Solomon Langa, is a practising attorney in Polokwane. He was admitted as an attorney in 1996.

[13] He was arrested on 19 March 2010. The third defendant ("no 3") who is Warrant Officer Thema, summoned him to the police station. Although the plaintiff did not say so, he presumably intended to say that he was telephoned by no 3 to go to the police station. He did so, accompanied by a friend Mashele Mokono. Mokono did not give evidence.

[14] On arrival at the station no 3 told him that his wife had laid a complaint against him and that it was of a serious nature and that he was being arrested.

[15] He asked what the charge was and did not get an answer. He demanded a warrant of arrest and there was no response to this request.

[16] No 3 was later joined by no 2 (now colonel G M Nemakula) and no 4 (now sergeant Makoena Rachel Matsimela).

[17] No 2 told him that "they were taking me in". He was taken into the waiting room where they took away his belt and shoe-laces and booked him into the police cells. After a while, which could have been two or three hours, he was released. He was never charged. No fingerprints were taken. After his release he noticed that the complainant, his wife, had withdrawn the complaint. Mokono is a friend of his, a candidate attorney although not from the plaintiff's firm.

[18] He was arrested at about 11:40 "or so".

[19] He co-operated, and no force was used in the process of the arrest. He was allowed to look at the docket after his release. The first page of the docket is exhibit "A67". On the docket the nature and description of the offence is described as "assault by threats (domestic violence)".

On "A67" there is also an official stamp by the state prosecutor dated 9 February 2010 (which, it is common cause, was a wrong date because the arrest only took place on 19 March) and the inscription "nolle prosequi" with the prosecutor's signature. There is also another signature purportedly by the station commander next to the date

19 March 2010 with the inscription "withdrawn".

[20] Of importance for present purposes, is the fact that the plaintiff was referred, in evidence in chief, to the complainant's statement which she made to the police on 17 March 2010 which led to the arrest of the plaintiff. It is exhibit "A82". "A82" was read into the record and it is convenient to quote the contents:

"On Monday 1 February 2010 at about 07:00 I was at the abovementioned residential address (note: it is 25 E[…] N[…], W[…] E[…]) with my husband when I decided to separate with him after he says that he will no longer contribute on anything in the house. His name is Solomon Langa. We were not officially married but only lobola was paid.

I told him to move out of my place because I did not want him to be part of my life anymore. He moved out but he always visit me saying that he wants money from me. He promised me that if I do not give him half of my assets/properties, he will hire people from outside the country to kill me.

Now Solomon Langa is telling lies to his friends and family that I want to kill him so that no one could claim my properties. On 17 March 2010 he came to my place and searched everything saying that if he do not get the money he is going to kill me. He even said that he will let me die accidentally so that no one will know the cause of my death. He insulted at me calling me names in front of my helper. He sent me threat messages which if I die he is the first suspect.

I did not give anyone the permission to threaten me before. Request police help."

The statement is dated 17 March 2010 at Polokwane and the complainant's name is Charmaine Kwena Molokomme. The statement contains her cell number 083[…].

[21] The plaintiff testified that he was no longer staying with the complainant and that there is a pending divorce.

[22] The main thrust of the plaintiff's case, as he was testifying, was that the appropriate step for the complainant would have been to apply for a protection order in terms of the Domestic Violence Act and that it was the responsibility of the defendants, when approached by the complainant alleging such threats, to refer her to the clerk of the court for a protection order to be issued in terms of the Domestic Violence Act.

[24] It is common cause that no protection order was applied for.

[25] It was put to the plaintiff in cross-examination that he was aggressive and unco operative when summoned to the police station and left the police station without permission before returning to be arrested. This he denied. I consider it inherently improbable that such evidence would be offered on behalf of the defence (as it was) if it did not happen. It seems to be unlikely that such a version would be fabricated.

[26] The plaintiff conceded that his constitutional rights were read to him when he was arrested. He also conceded that he signed the "certificate by detainee" referred to in his particulars of claim. This is exhibit "A80". It is counter-signed by no 4. It is the printed document certifying that the rights in terms of the Constitution were read to the detainee. The time on the certificate is 11:35.

[27] When the plaintiff was confronted in cross-examination with the proposal that the arrest without a warrant was justified, he

disagreed, relying on the decision by the prosecutor not to proceed with the charges (the nolle prosequi already referred to which appears on "A67") and suggesting, with reference to the incorrect February date, that there was no basis for an arrest if the prosecutor had already declined to prosecute. In this regard, the plaintiff was grasping at straws. It is common cause that the date was wrong and it appears from the uncontested evidence offered later by the defence

that the charge was only withdrawn on the date of the arrest after the complainant had withdrawn her complaint. The plaintiff,

indeed, went so far as to say that the existence of the nolle prosequi "is the basis of my case".

[28] What also received some attention during the cross-examination of the plaintiff as well as the evidence of no 4, is the latter's version that, on 18 March 2010, the day before the arrest, she spoke to the complainant over the telephone who said that she had been receiving threatening sms messages from the plaintiff and she was staying away from her home in Polokwane because she was afraid of being killed. The messages were forwarded to no 4 on her cell phone and they came from cell phone no 083[…], which is the cell phone number of the complainant as explained. In cross-examination, the plaintiff admitted that this was her number.

[29] In her statement which no 4 made and placed in the docket, she quoted the contents of these messages which were written in the Pedi language and translated by no 4 for purposes of her statement. Typed translations of these messages are to be found in exhibits "A76B" and "A76C". They were introduced in the document bundle by agreement. It is necessary to quote the five messages which were recorded:

"1. You and those police boys I will get you into trouble/shit/faeces you know.

2. I took that Range Rover you will get it once I received my money. Go to your advisor then return to the police station to report it stolen. You get used to me shit/faeces.

3. You think you can scare me with clumsy cases at the police station.

4. Is a Parabelum 9mm Special. Tell Sammy that it is not fast enough. AK is too big. I need Mickarov.

5. You can undermine me and my family but just know I am not alone in my battles, I am surrounded by powerful men you can't believe."

[30] When confronted with these messages, the plaintiff offered a bare denial. I consider it inherently improbable that these messages could have been sent by anyone else than the plaintiff. No suggestion was made as to who else could have sent them. Generally, I was not impressed with the plaintiff as a witness. When he was pressed in cross-examination on these messages, he became argumentative and said that the complainant made no mention of the messages in her complaint statement "A82". It is clear from the evidence of no 4 that the messages only came on 18 March, the day after the statement was made.

[31] It was put to the plaintiff in cross-examination that the complainant visited him after he was detained and thereafter told the police that she did not want to proceed with her complaint. He denied that he had a discussion with the complainant at the police station. This is in the face of evidence by no 2, no 3 and no 4 that he did speak to her. The plaintiff's denial is unconvincing and makes no sense. There is no conceivable reason why the three defence witnesses would fabricate a version that the complainant came to visit the plaintiff while he was in detention and thereafter withdrew the complaint. If this did not happen, there is no apparent reason why the complaint was not proceeded with. This is another aspect of the plaintiff's evidence which I found unconvincing and unsatisfactory. He was also obstructive in his approach: when he was pressed further on the fact that the threatening messages came from his wife's cell phone, he said that he could not make such a concession unless the cell phone service provider's records were presented.

[32] In cross-examination, the plaintiff conceded that he was detained at about 11:40. The complainant's statement in which she withdrew the complaint was signed at 13:08, less than two hours later. This is exhibit "A78".

The uncontested evidence is that no 4 then took the withdrawal statement, in the company of the complainant, to the prosecutor where the withdrawal was endorsed. Thereafter the plaintiff was released. Presumably at about 14:00. The plaintiff

conceded that after the charges were withdrawn, there was no room for charges to be laid but he indicated that there was enough time before the withdrawal of the charges for him to be formally charged. He said so despite the fact that his attention was invited to the provisions of section 50 of the CPA which stipulates that a detainee is to be brought before court within 48 hours after his arrest unless released or granted bail before then. In this case, of course, he was released within about two hours or slightly more.

[33] After giving evidence, the plaintiff closed his case without calling any other witnesses.

[34] Sergeant Mokoena Rachel Matsimela is the fourth defendant (no 4). She joined the police in 2004. She was still a constable when these events occurred but is now a sergeant.

[35] She read the docket. It was clear that it was a case of domestic violence. It is also endorsed like that on "A67".

She discussed the fact that it was a case of domestic violence with no 3. She telephoned the plaintiff with the official phone of no 3 and when she could not get hold of him left a message for him to visit her at the police station. This was on 19 March. She said that earlier she telephoned the complainant who told her, as I have pointed out, that she was not at home or at work because she was afraid the plaintiff would kill her. No 4 then testified about the sms messages which the complainant mentioned to her and which the complainant forwarded to her as I have described. She testified about the contents of the messages. She confirmed that the cell number from which the messages came belongs to the complainant and is reflected on the complaint statement, "A82".

[36] When she got to the police station on 19 March she also discussed the matter with no 2 who confirmed that they were dealing with a serious domestic violence case and that the plaintiff had to be arrested. She told no 2 that she had phoned the plaintiff the previous day (the 18th) to come to the police station but he did not respond to the message that was left.

[37] On 19 March no 3 informed her that the plaintiff had arrived. He was with his attorney (presumably Mokono). She told him about the domestic violence complaint and that she was going to arrest him. The plaintiff reacted indignantly, jumped from his chair and said that there was no case. No 3 tried to pacify the plaintiff. The plaintiff told her that she did not know the law and was only a trainee. At one stage the plaintiff just walked out and no 3 had to telephone him to come back and no 3 cautioned him not to make things difficult. He came back at about 11:35. No 2 also got involved and instructed no 3 to help no 4 to arrest the plaintiff.

[38] At this point, I add that, on a general reading of the evidence, the arresting officer was no 4 alhough she was supported in her task by no 2 and no 3.

[39] No 4 then read the plaintiff his rights. He told her not to read him his rights because he knew the rights. She continued reading the rights as part and parcel of her duties. This also appears from the "certificate by the detainee", exhibit "A80", to which I have referred. When they took the plaintiff to the holding cell, he asked no 4 to phone his wife, tell her that he had been arrested and ask her to come and see him. She phoned the complainant and passed on the message. She confirmed that the plaintiff wanted to see her. When the complainant arrived, she said she wanted to speak to the plaintiff. No 4 took her to no 2 who endorsed such an arrangement. The plaintiff was still in the waiting cells. She left the complainant with the plaintiff where they were talking. When the complainant emerged, she said she wanted to withdraw the case. She said he apologised and undertook to give her items which he had taken back to her. No 2 cautioned that the case was serious and that only the prosecutor should decide whether she could withdraw the complaint. This is when no 4 took the complainant to the prosecutor, as indicated, and the complaint was withdrawn with

the necessary endorsement made on the docket.

[40] No 4 confirmed that she was the arresting officer.

[41] Of importance, for present purposes, is the evidence of no 4 dealing with her motivation and explanation for the decision to arrest the plaintiff. She dealt with this in chief and in cross-examination. In summary, it amounted to the following:

when she first read the statement she concluded that it was a serious matter and realised that death threats are often executed and if one does not act to prevent the threats being executed, one would regret not having done so if the victim is actually killed. She decided to arrest the plaintiff because he was threatening to kill the complainant. When the complainant came to the police station on 17 March she said that the plaintiff wanted to kill her. No 4 said her resolve was strengthened when she was informed, before the day of the arrest, of the threatening messages and the fact that the complainant said she was not coming home because she was scared of being killed by the plaintiff. She realised that the complainant's life was in danger. The complainant asked for the police to help her. No 4 deemed it fit to arrest the suspect to save the complainant's life. She said "I did not want to be negligent by not helping this woman and take it as a joke when he says he will kill her".

[42] In cross-examination, she also adequately dealt with the provisions of section 40(1) of the CPA and confirmed that she relied on the provisions of section 40(1)(q) when deciding to effect the arrest without a warrant.

When no 4 was pressed further on her decision to effect the arrest she referred to the complaint statement "A82" and pointed out that it was clear from that statement that the quarrels between the complainant and the plaintiff had been going on for some time. The plaintiff threatened to kill the complainant according to the statement and he even mentioned to employ foreigners ("people from outside the country") to kill the complainant. The suspect is an attorney who works with different people involved in different crimes. The complainant had a positive belief that the suspect could kill her or send people to kill her. After the suspect heard that the police wanted to contact him he sent more sms's showing his disdain for the police and the fact that he was not scared of them. In a case like this, she did not see any point in advising the complainant to apply for a protection order when she could see that the complainant's life was in danger.

[43] No 4 also confirmed that she did not know the complainant or the plaintiff before the complaint was lodged and that she had no reason to fabricate evidence against the plaintiff.

[44] I considered no 4 to be a credible and impressive witness. She was not discredited in lengthy and intense cross-examination.

[45] Herman Magobathe Thema (no 3) joined the police in 1988. He holds the rank of warrant officer. He corroborated the evidence of no 4 in all material respects. He confirmed that he called no 4 when the plaintiff and his attorney arrived. The plaintiff's attitude was "the matter I came here for is nothing". No 3 tried to cool things down. He urged the plaintiff to listen to what no 4 had to say to him. He also confirmed that the plaintiff disappeared for a while.

The plaintiff was called and requested to come back. No 2 also got involved and instructed no 3 to help no 4 to take the plaintiff to the cells.

[46] No 3 said he also read the docket.

[47] In cross-examination, no 3 was only asked whether he confirmed the contents of his statement in the docket, which is "A71".

No further questions were asked in cross-examination.

[48] Gideon Modimisi Nemakula is no 2. He joined the police thirty years ago, in 1984 and holds the rank of colonel. He supported the evidence of no 4 and confirmed that he expressed the view to her that it is a serious matter and that the suspect ought to be arrested before he killed the complainant. No 4 also showed him the cell phone messages which were received from the complainant. He instructed no 3 to go along with no 4 when they took the plaintiff to the cells.

He confirmed the evidence of no 4 that she came to ask his advice when the complainant arrived with the request to speak to the plaintiff in the cells. He confirmed that he gave his blessing for such an arrangement. After the meeting with the plaintiff, the complainant wanted to withdraw her complaint and the witness confirmed the evidence of no 4 that it was felt that the prosecutor should endorse such a withdrawal. He confirmed that no 4 and the complainant went to see the prosecutor.

[49] In cross-examination, no 2 said that he was not the arresting officer - "In my capacity I do not arrest. I am a supervisor."

[50] As I indicated, on a general reading of the evidence, no 4 was the arresting officer.

[51] No 2 confirmed that he saw this as a serious case and he realised the danger that the complainant could be killed.

[52] No 2 dismissed the plaintiff's evidence that he never saw his wife at the cells. He confirmed that the meeting indeed took place. As I indicated, there is no conceivable reason why the defence witnesses would testify about such a meeting if it never happened. The plaintiff's denial of this is unconvincing and, on the probabilities, untrue.

Conclusionary remarks

[53] In my view, no 4 acted lawfully by arresting the plaintiff without a warrant on the authority of the provisions of section 40(1)(q). She reasonably suspected the plaintiff of having committed an act of domestic violence as contemplated in section 1 of the Domestic Violence Act, "which constitutes an offence in respect of which violence is an element".

[54] I described the detailed explanation by no 4 and her motivation for effecting the arrest. She also did so after consulting her senior colleagues no 2 and no 3. No 2 encouraged her to effect the arrest.

[55] In the definition of "domestic violence" in the Domestic Violence Act, which is mentioned in section 40(1)(q), it is specifically stipulated, after the various forms of domestic violence are listed, that those forms constitute domestic violence "where such conduct harms, or may cause imminent harm to, the safety, health or well-being of the complainant" (emphasis added). In my view, the conduct described in the complaint statement, "A82", and the cell phone messages, which I accept, on the overwhelming probabilities, to have come from the plaintiff, clearly falls inside the ambit of these provisions constituting the definition of "domestic violence" in section 1 of the Domestic Violence Act.

"But even if this Act does not apply, it remains a general requirement that any discretion must be exercised in good faith, rationally and not arbitrarily.

This would mean that peace-officers are entitled to exercise their discretion as they see fit, provided that they stay within the bounds of rationality. The standard is not breached because an officer exercises the discretion in a manner other than that deemed optimal by the court. A number of choices may be open to him, all of which may fall within the range of rationality. The standard is not perfection or even the optimum, judged from the vantage of hind-sight - so long as the discretion is exercised within this range, the standard is not breached."

[57] As was re-stated in Sekhoto at 320h ­i, the jurisdictional facts or requirements for a section 40(1)(b) defence (that it was lawful to arrest without a warrant) 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 (the arrestee) committed an offence referred to in schedule 1 (my note: in this case an offence mentioned in section 40(1)(q)); and

(iv) the suspicion must rest on reasonable grounds."

[58] For the reasons mentioned, I am of the view that the jurisdictional requirements were present and proved by the defendants in as much as they had the onus to discharge in this regard.

[59] In as much as the plaintiff may have attacked the manner in which the discretion to arrest was exercised, although this much was not pleaded in a replication or argued in as many words before me, it is useful to refer to what was said in Sekhoto at 333a b:

"The general rule is also that a party who attacks the exercise of discretion, where the jurisdictional facts are present, bears the onus of proof. This is the position whether or not the right to freedom is compromised. For instance, someone who wishes to attack an adverse parole decision bears the onus of showing that the exercise of discretion was unlawful. The same would apply when the refusal of a presidential pardon is in issue."

In my view, the plaintiff failed to discharge this onus, if, indeed, he even attempted to do so.

[60] Finally, I turn to the plaintiff's argument that the complainant should have been advised to ask for a protection order and that an arrest should not have been effected.

In this regard, Mr Kwinda referred me to the case of Minister of Safety & Security v Bonisile John Katise (328/12) [2013] ZA (SCA) 111 (16 September 2013) where the Supreme Court of Appeal dealt with a similar case and held that where a peace-officer without warrant arrests a person on the reasonable suspicion that he is committing acts of domestic violence the arrest will not be unlawful only because there is no domestic protection order against that person in place. The Supreme Court of Appeal specifically dealt with the provisions of section 40(1)(q) of the CPA – see, generally, paragraphs [15] and [16] of the judgment.

[61] I add that there was also a somewhat vague argument to the effect, if I understood it correctly, offered on behalf of the plaintiff that the only offences in respect of which an arrest can be effected with regard to the Domestic Violence Act, are those stipulated in section 17 of that Act which deals, mainly, with contraventions of protection orders. This argument, such as it is, is clearly unfounded: the provisions of section 40(1)(q) of the CPA stipulates that an arrest can be effected as a result of an act of domestic violence having been perpetrated and that provision does not foreshadow the existence of a protection order or the breach of such an order. The judgment in Katise bears testimony to this fact.

[62] In the result, I have come to the conclusion that the action falls to be dismissed.

Costs

[63] In his address in reply, Mr Thaba pointed out that the matter came before court on 31 January 2012 when the defendants were not ready to proceed so that the defendants are to be ordered to pay the costs flowing from those proceedings. According to an endorsement on the court file, the costs were reserved on that occasion. I heard no submissions from Mr Kwinda in opposition to this request. Consequently, I will order the defendants to pay the costs relating to the proceedings of 31 January 2012.

[64] For the rest, the normal rule should apply and the costs should follow the result.

Order

[65] I make the following order:

1. The claim is dismissed.

2. The plaintiff is ordered to pay the costs with the exception of the costs flowing from the proceedings of 31 January 2012, which costs are to be paid by the defendants, jointly and severally.

W R C PRINSLOO

JUDGE OF THE GAUTENG DIVISION, PRETORIA

30355-2010

HEARD ON: 17 MARCH 2014

FOR THE PLAINTIFF: MR D E THABA

INSTRUCTED BY: LANGA ATTORNEYS

FOR THE DEFENDANTS: T C KWINDA

INSTRUCTED BY: STATE ATTORNEY