Ledwaba v Minister of Safety and Security and Another (67637/2011) [2020] ZAGPPHC 188 (24 March 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: YES

Case Number: 67637/2011

24/3/2020

In the matter between:

LESETJA JERRY LEDWABA

Plaintiff

and

MINISTER OF SAFETY AND SECURITY

First Defendant

WARRANT OFFICER KHANYI

Second Defendant

JUDGMENT

MOLEFE J

[1] The plaintiff in this action seeks damages against the defendants arising out pf his arrest on 20 May 2011 at Vosloorus, his subsequent detention! as well as the alleged assault. The plaintiff alleges that his arrest, initiated by the police officers acting within the cause and scope of their employment, was without a warrant of arrest, and was therefore unlawful.

[2] The defendants admit the arrest and detention of the plaintiff. However, they deny liability, claiming that the plaintiff was lawfully arrested for corruption in terms of section 40(1)(b) of the. Criminal Procedure Act[1], and furthermore deny that the plaintiff was assaulted.

[3] The issues to be determined are the following:

3.1 was the arrest and detention of the plaintiff lawful or unlawful?

3.2 was the plaintiff assaulted by the police officers, and if so, the nature and extent of such an assault

3.3 the quantum of the plaintiff's damages should judgment on the issue of liability be in his favour.

Plaintiff's Evidence

[4] The plaintiff, Mr Ledwaba, testified that in May 2011 he was a detective in the South African Police Services ('SAPS'), stationed at Vosloorus Police Station. He is currently unemployed. On 20 May 2011, he was on duty with his colleague Sergeant Mphela, when he received a telephone call from Mr Sicelo Mahlangu ('the complainant'), regarding a Mazda vehicle he was interested in buying from the complainant.

[5] The plaintiff travelled with Sgt Mphela to meet the complainant at Molebo's shops where the complainant gave him the registration documents for the vehicle he intended to buy. When they were travelling back, the plaintiff received a telephone call from the complainant, requesting him to come back as he realised that he had given him incorrect documents. Since they were already approximately 5 kilometers out of Vosloorus, he telephoned a colleague, Sergeant Nkosi, and requested him to meet with the complainant to get clarity about the vehicle documents. Sgt Nkosi later telephoned him and requested the plaintiff to come back to meet with him and the complainant as he could not understand what was going on.

[6] On their arrival at the agreed meeting place (he was still with Mphela), he was surprised to see vehicles blocking their way. The occupants of these vehicles pointed them with firearms, ordered them to get out of their vehicle, and informed them that they were police officers. They demanded that they should hand over the money, One of the police officers hit the plaintiff with an open hand which caused him to fall to the 9roun,d, They took money (R400.00) from his pocket whilst he was still on the ground, Three of the police officers assaulted him by repeatedly kicking him whilst he was lying on the ground.

[7] The money found in the plaintiff's possession was compared for verification with the photocopies of R100.00 notes, but hi$ money could not match the photocopied notes. Warrant Officer Khanyi (second plaintiff) handcuffed the plaintiff and informed him that the operation was an entrapment, and they were being arrested for taking R3000.00 from the complainant.

[8] The plaintiff further testified that they were first taken to Vosloorus Police Station, and he was later detained at the high risk facilities at the Johannesburg Police Station, He appeared in court on Monday 23 May 2011 and only then did he learn that he was arrested for corruption. He was released on bail.

[9] The corruption charges against them were initially provisionally withdrawn, but were later reinstated. He never made any statement. They were both found not guilty and acquitted.

[10] The plaintiff testified that his first encounter with the complainant was on 13 May 2011. He and Mphela 'impounded' a Volkswagen Jetta vehicle at the car wash as they suspected it to be stolen. They took the vehicle to Vosloorus Police Station, and the complainant came and claimed that the vehicle belonged to him. He provided them with the relevant documents to proof his ownership. Mr Ledwaba denied that he demanded money from the complainant on 13 May 2011 before he could release the vehicle, and also denied that he retained the complainant's vehicle documents until a further amount of R3000.00 was paid to him.

[11] During cross-examination, the plaintiff was questioned about the discrepancies in his testimony about the number of police officers who assaulted him. In his examination-in-chief, he testified that he was assaulted by 3 (three) police officers, but in his statement he testified that he was assaulted by 4 (four) police officers. Mr Ledwaba was further unable to explain why the Doctor who completed the J88 form would write "was allegedly hit by 6 SAPS members"[2].

[12] The plaintiff c;1lso contradicted himself regarding the details and seriousness of the alleged assault, and failed to explain why he did not sustain any visible injuries, despite having been repeatedly kicked whilst he was lying on the ground. He could also not explain why he never informed his legal representative in the criminal trial about his assault.

[13] The plaintiff denied the complainant's version that on 21 May 2011, he and Mpela demanded R4500.00 from the complainant for the release of his vehicle, that he only gave them R1500.00, and that they retained the vehicle registration documents until the balance of R3000.00 was paid to them on 17 May 2011.

[14] He reluctantly accepted that the Director of Public Prosecutions granted a telephonic authorisation for a section 252A entrapment on 17 May 2011. It was also put to him during cross-examination that the main reason for their acquittal was due to the fact that the. complainant absconded before he could be cross- examined. The complainant's evidence in the criminal trial was therefore disregarded.

Defendants' Evidence

[15] Two witnesses, Warrant Officers Mathda Lancelot Molefi ('Molefi') and Warrant Officer Leonard Khanyi (Khanyi) testified on behalf of the defendants.

[16] Warrant Officer Molefi testified that he was the investigating officer in the complainant's case, and that prior to the arrest of the plaintiff and Mphela, the two were unknown to him and his colleagues, The complainant reported corruption of the plaintiff and Mphela to the Organised Crime Unit at the Johannesburg SAPS on 16 May 2011, and his allegations were contained in a statement which was handed to him. The complainant attended to their offices on 17 May 2011, and after consultation, he was satisfied with

the complainant’s ownership of the vehicle in question.

[17] It was decided that permission be obtained to set a trap for the two police officers in order to strengthen the corruption case against them as they were still demanding R3000,00 from the complainant. Colonel Mothamme, Molefi's commanding officer dealt with the requirements for section 525A authorisation, and he obtained the State money which they intended to use in the entrapment. The authorisation was granted on 17 May 2011[3] although it was dated 23 May 2011. The R100.00 trap notes were photocopied.

[18] On 20 May 2011, arrangements were made with 5 (five) of Molefi's colleagues at the Organised Crime Unit to assist with the entrapment, and they all proceeded to Vosloorus where they met with the complainant. They were travelling in 3 (three) police vehicles. Molefi searched the complainant before he handed him the

R300.00 trap money, and ·the complainant was requested to verify the numbers and to sign on the photocopies. They never left the complainant alone after he was given the money.

[19] The complainant, accompanied by Khanyi, went ·to a phone booth to phone the plaintiff, and requested him to come and meet the complainant at a certain Moleba Store, The complainant and all the police officials waited for the plaintiff and Mphela to arrive. The complainant was instructed to try and get them in the shop before handing them the money, and once they had the money, he had to put his cap on his head as a signal that the transaction was completed.

[20] Molefi testified that the complainant remained in their sight all the time after receiving the money. When the plaintiff and Mphela arrived in their Toyota Corolla vehicle, the complainant, instead of leading them to the shop as arranged, he boarded their vehicle, and when he disembarked from the vehicle he immediately put his cap on. Before any of the police vehicles could pursue the plaintiff's vehicle, they drove away very fast, and they could not be apprehended, Molefi immediately approached the complainant, searched him. The money was no longer in his possession, and he was only in possession of the documents pertaining to his vehicle.

[21] Khanyi then told the complainant to phone the plaintiff, request him to come back and tell him that he gave him the wrong vehicle documents in order to lure him back. The complainant phoned the plaintiff, and a few minutes later Sergeant Nkosi arrived at the scene with a marked police van to enquire from the complainant about the documents. Khanyi requested Nkosi to phone the plaintiff again and to request him to return to Vosloorus, and to inform him that he did not understand the problem regarding the documents. The plaintiff directed Nkosi to a specific meeting place. The police van lead the way whilst the other police officials and the

complainant followed in three police vehicles to the meeting place.

[22] When the plaintiff and Mpela arrived at the meeting place, they were blocked by the police vehicle . and they were apprehended. Molefi testified that he searched the plaintiff and found R,400,00 in his possession, but the money could not be linked or verified as the photocopied trap money. The complainant told them that he gave the R3000.00 trap money to the plaintiff. Both the plaintiff and Mphela were arrested at the scene and were informed of the reasons for their arrest by Khanyi.

[23] Molefi further testified that the plaintiff was arrested on the reasonable suspicion that he committed corruption. He reiterated that he had sufficient evidence to effect the arrest on 17 May 2011, but that it was decided to set up a trap to strengthen the case against the plaintiff and Mphela. Molefi denied that the plaintiff was assaulted during his arrest, but that was repeatedly instructed to lie down as he was not co-operative during his arrest.

[24] Under cross exanimation , Molefi denied the suggestion that they arrested the plaintiff and Mphela because they lost the State money during the entrapment.

[25] Warrant Officer Khanyi testified that on 20 May 2011 he was a detective at the Organised Crime Unit at Johannesburg, SAPS. He corroborated Molefi's testimony in respect of the events on 20 May 2011, and also testified that he was satisfied that there was sufficient evidence to effect the arrest. The plaintiff was arrested by Warrant Officer Ditabo and Warrant Officer Ntuli. He never saw them assaulting the plaintiff, but heard them repeatedly instructing him to lie down as he was resisting the arrest. He testified that he personally arrested Mphela. After their arrest, the complainant's vehicle was searched and the trap money was not in the vehicle. The money was never recovered.

[26] The plaintiff's version in broad outline corresponds with the defendants' version. On the plaintiff's version, all the issues relating to the complainant's impounded vehicle were sorted out prior to 20 May 2011. At the time of his arrest they were in fact discussing the taxi business he was interested in, yet the complainant filed a false complaint against him and Mphela. Furthermore, the vehicle documents given to him by the complainant on 20 May 2011 were in respect of a private transaction, but he opted to send another police officer, who had no interest in his private dealings with the complainant, to enquire about the documents which according to him were in his possession, and whilst they were only 5 (five) kilometers away. The plaintiff contradicted himself regarding

his arrest, and whether he was in fact informed of the charges against him when he was arrested and also in relation to the alleged

assault during his arrest.

[27] In my view, the plaintiff was an evasive and an unreliable witness, and his version is in my opinion highly improbable. On the other hand, I found the defendants' witnesses to have testified with certainty, to the point, and without any bias regarding their investigations and the outcome of the entrapment. The contradictions in their testimonies were minor and not material.

[28] The defendants rely on the protection afforded by section 40(1)(b)[4] in respect of the arrest. The section entitles a peace officer to arrest any person without a warrant whom he reasonably suspect of having committed an offence referred to in schedule 1, other then the offence of escaping from lawful custody.

[29]

•

In casu, the plaintiff was arrested for corruption[5] In Duncan v Minister of Law and Order[6], the four jurisdictional facts laid down for a defence based on section 40(1)(b) were namely: (i) the arrestor must be a peace officer; (ii) the arrestor must entertain a suspicion; (iii) the suspicion must be that the suspect committed an offence referred to in schedule 1 of the CPA; and (iv) the suspicion must rest on reasonable grounds. The issue is whether a reasonable man, in the arresting officers' position, and In possession of the same information, would have concluded that there were good and sufficient grounds for suspecting that the plaintiff committed corruption.

[30] In Mabona and Another v Minister of Law and Order and Others[7], Jones J aptly summarises how a 'reasonable suspicion' is to be formed:

"It seems to me that in evaluating his information a reasonable man would bear in mind that the section authorizes drastic police action. It authorises 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 personal liberty. The reasonable man will therefore analyse and assess the quality of the information at his disposal critically, and he will not accept it 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. This is not to say that the information at his disposal must be of sufficiently high quality and cogency to engender in him a conviction that the suspect is in fact guilty. This section requires suspicion but not certainty. However, the suspicion must be based on solid grounds. Otherwise, it will be flighty or arbitrary, and not a reasonable suspicion".

[31] The four jurisdictional factors were reinstated and confirmed by the Supreme Court of Appeal (SCA) in Minister of Safety and Security v Sekhoto and Another[8]. This was necessitated by a suggestion earlier in Louw v Minister of Safety and Security[9], that a fifth jurisdictional factor should be added, in terms of which even if all other four jurisdictional factors were present, the arresting officer was obliged to

consider whether there are no less invasive options to bring the suspect before court than immediate detention. The SCA in

Sekhoto concluded that there was neither a constitutional nor jurisprudential justification to add such a fifth jurisdictional factor.

[32] The SCA in Selebi v S[10] set out the essential elements of the general offence of corruption under the Act as (a) acceptance; (b) of a gratification (payment or some other benefit); (c) in order to act in a certain way (inducement); (d) unlawfulness; and intention. If the elements of corruption are considered, and especially the fact that the mere demand of money or any gratification constitutes acceptance, it is evident that all the elements of the offence were already met on 13 May 2011, as set out in the affidavit of the complainant.

[33] The onus is on the defendants to establish the lawfulness of the plaintiff's arrest. Having considered the evidence presented, I am satisfied that the defendants arrested the plaintiff lawfully on reasonable suspicion that he committed corruption, being a schedule 1 offence, on the basis of the complainant's statement, and have discharged the onus on them. The arrest of the plaintiff was accordingly lawful. The fact that the trap money was not found does not alter the fact that there was reasonable suspicion that corruption had been committed.

Plaintiff's alleged assault

[34] The onus of proving that the plaintiff was assaulted rests on the plaintiff. When considering whether the plaintiff proved the alleged assault by the police officers, the evaluation must d pend largely upon the evaluation of the evidence, inferences from other facts, and upon probabilities[11].

[35] Plaintiff’s evidence of assault is controverted, and is not corroborated by the medical record for the injuries he allegedly suffered as a result thereof. The plaintiff contradicted himself regarding the details and seriousness of the alleged assault, and failed to explain why he did not sustain any visible injuries despite the fact that, according to his statement in his case docket, he was repeatedly kicked whilst he was lying on the ground.

[36] An assault violates a person's bodily integrity and the cause of action is the action injuriarim. It is for the plaintiff to establish the fact of physical interference. Accordingly, the plaintiff must allege and prove facts that prima facie and objectively indicate a wrongful act. On the evaluation of evidence, I am not satisfied that on a balance of probabilities, the plaintiff has proved that he was assaulted by the police officers.

[37] In the result, the fallowing order is made:

1. The plaintiff's claim against the defendants for unlawful arrest, subsequent detention and assault is dismissed with costs.

DS MOLEFE J

JUDGE OF THE HIGH COURT

APPEARANCES:

Counsel on behalf of Plaintiff : Adv. M R Rafedile

Instructed by

: Lesiba Mailula Attorneys

Counsel on behalf of : Adv. J Barnardt

Defendant Instructed by : The State Attorneys

Dates of hearing

: 14, 15, 16 and 17 October 2019

Date of judgment

: 24 March 2020

[1] Act 51 of 1977

[2] Record page 597

[3] Exhibit 'F'

[4] Criminal Procedure Act, 51 of 1977.

[5] Section 4 of Prevention and Combatting of Corrupt Activities Act 12 of 2004.

[6] 1986 (2) SA 80S (A) at 818 G H,

[7] 1988(2) SA 645 at 658 E-G.

[8] 2011(1) SACR 315 (SCA)

[9] 2006(2) SACR 178 (T)

[10] [2012] 1 All SA 332 (SCA)

[11] Union Spinning Mills (Pty) Ltd v Pattex Dye House (Pty) Ltd and Another 2002 (4) SA 408 (SCA) at para 24