Malatsi v Minister of Police (67744/2016) [2022] ZAGPPHC 122 (17 February 2022)

REPUBLIC

OF SOUTH AFRICA

IN THE HIGH COURT

OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: NO

CASE NO: 67744/2016

In the matter between:-

FRANS

SERUMULA MALATSI

Plaintiff

And

MINISTER

OF

POLICE Defendant

JUDGEMENT

BEFORE:

MEERSINGH AJ

(The matter was heard via Teams in accordance with the Directives regarding the arrangements during the National State of Disaster; the Judgment will be uploaded onto Case Lines to the electronic file of this matter and will be electronically submitted to the parties/their representatives by Email).

[1] This is an action instituted by the Plaintiff against the Minister of Police. The Plaintiff was arrested by one Constable Obed Malope on the 6 of October 2014 and was detained. The Plaintiff’s case is that he was arrested unlawfully. The Plaintiff seeks damages under the Lex Aquila and the Actio Iniuriarum caused by the wrongful, culpable acts of the Minister of Police through its employee, Constable Obed Malope.

[2] The Defendant avers that his arrest and detention was lawful and that it is not liable to compensate the Plaintiff. The issue of Quantum was separated from the issue of Merits. The matter then proceeded on the issue of liability only.

It is common cause that: -

(i). The Plaintiff was arrested and detained

(ii). The arresting officer was a peace officer

(iii). The Plaintiff was charged with Rape/sexual assault

(iv). Tried and discharged on the 7the of March 2016

(v). That the Plaintiff and the complainant were known to each other and lived in the same neighbourhood

[3] The evidentiary burden and accordingly the onus of proof shifted from the Plaintiff to the defendant.

[4] The Defendant called the arresting officer, Sergeant Obed Malope (“Malope”) to testify. He testified that at the time of the incident he was a member of the South African Police Services (SAPS) and employed at a branch that specialized in crimes of a sexual nature, more specifically sexual offences against women and children. On the morning of the 6th of October 2014 whilst he was at home but officially on duty he was contacted about an incident involving a minor. Upon his arrival at the Police station he was given the case docket and the A1 statement of one Pauline Mashigo (the complainant). With the benefit of the statement he interviewed the complainant and the victim, a 3 year old boy. They both confirmed the contents of the A1 statement. The A1 statement inter alia made mention of the identity of the alleged perpetrator, the date and the nature of the alleged offence. As part of the docket there was a report by a medical doctor to the effect that there was evidence of anal penetration of the minor. Notwithstanding same Constable Malope took both the complainant and victim to a medical doctor that members of his unit consult with in the event of an alleged sexual offence as was normal procedure. The medical practitioner examined the victim, and completed a J88 report which was stamped at 14:49 and dated the 06-10-2014. His finding were as follows:-

(i). There was funneling of the anus.

(ii). The rectum was tender and he was unable to examine same.

(iii). Anal penetration was attempted.

[5] He thereafter proceeded to the residence of the Plaintiff, accompanied by the victim and the complainant. Upon arrival at the residence of the Plaintiff, the victim saw the Plaintiff and ran away. The complainant identified the Plaintiff, whom her son (the victim) had told her was the perpetrator. He arrested the Plaintiff at approximately at 16h00 based on the following facts:

(i). The contents of the A1 statement;

(ii) The interviews with the victim and the complainant;

(iii) There were two medical examinations that confirmed anal penetration or an attempt thereat;

(iv) The complainant identified the Plaintiff as the perpetrator as identified to her by her minor son (the victim).

(v). The Plaintiff was well-known to both the complainant and the victim.

[6] He informed the Plaintiff of the reason for his arrest, being rape of a minor child. He explained to the Plaintiff his constitutional rights in the Sepedi language which was the language of the Plaintiff and booked him at the Loathe police cells. At the said police station his rights were once again explained to him. An entry was made in the OB book because the SAP14 books were full.

[7] Under cross examination Constable Malope confirmed that the name of the accused was Sipho and that in the A1 statement the Plaintiff was referred to as “Sipho/Supa” and the full names of the Plaintiff, Frans Serumula Malatsi were also mentioned on the statement. Constable Malope’s evidence is that the person referred to in the statement was the Plaintiff. He attended on the matter from 7:30 in the morning to 19:30 in the evening. He confirmed that he arrested the Plaintiff after having obtained the J88 at approximately 14h00. His evidence was that he had arrested the Plaintiff because he committed a Schedule 5 offence and thereafter corrected himself by saying it was a Schedule 6 offence because it involved a minor child. He further testified that he did not have the relevant training to take statements from children under the age of 5. He however relied on the statement from the mother as the child was comfortable with the mother. He later completed the investigation diary whilst he was at home and wrote a statement, which was not commissioned because no one was available to commission it. He confirmed that the Plaintiff was charged on the 7 of October 2014 and appeared in court on the 8 of October 2014. The defendant did not call any further witnesses.

[8] The Plaintiff testified that the victim was with him on the 5 October 2014 when the alleged incident occurred and that both the complainant and the victim are well known to him. On the 6 October 2014 he was at his place of residence and had been drinking from 8am that morning. He had already consumed between 4 to 5 quarts of beer (750 ml beers) when the police arrived to arrest him. The complainant and her sister were in the company of Constable Malope. They pointed at him and shouted out “You know what you did” Constable Malope informed him that he is arresting him for rape. He was arrested between 10am and 11am. He was handcuffed on one hand and was forcibly taken to the police van. His constitutional rights were not explained to him. He was taken to Dube police station and later to Loate were he was detained. He was informed that a statement will be taken from him the next day. He had no further encounter with Constable Malope.

[9] During cross-examination the Plaintiff confirmed that his full names appear on the warning statement and that he had signed the statement the next day. He indicated that he doesn’t remember who took his statement.

[10] Plaintiff called one witness, Mr. D Malatsi, the brother of the Plaintiff. He testified that the Plaintiff, the complainant and the victim were well known to each other and to him. On the day of the alleged crime he picked up the kids in the company of the Plaintiff who is known as Supa/Super. He further testified that he was with the Plaintiff on the morning of the 6 October 2014 and had left the Plaintiff’s residence at approximately 10h00am. The Plaintiff had been consuming alcohol from the morning until he had left. He received a call from the Complainant’s sister who asked him, who Sipho was. She informed him that Sipho had raped a child. Upon his arrival at home at approximately 11am he was informed that he just missed the police who had arrested the Plaintiff. He confirmed that he was not present during the arrest and has no personal knowledge of the arrest of the Plaintiff.

[11] The disputes before this court are the following: -

(i) Whether the person referred to in the A1 statement was in fact the Plaintiff

(ii) The time of the arrest.

[12] The specific name mentioned is clearly not a material issue as the complainant pointed out the Plaintiff as the person who committed the offence. This is supported by the victim’s conduct of running away when he saw the Plaintiff even though he was with his mother and a police officer.

[13] Constable Malope denied that the arrest was at the time suggested by the Plaintiff. His evidence is that the arrest occurred at approximately 14h00 at which time he was armed with not one but two medical reports. This is supported by the time stamp on the J88.

[14] The Plaintiff was arrested for a specific offence being the rape of a minor child which is a schedule 1 offence hence, the question before this court is the import of Constable Malope regarding the offence as a Schedule 6 offence. This does not detract from the fact that the Plaintiff was arrested for an alleged offence as listed in schedule 1 of the CPA.

[15] Constable Malope impressed this court with his honesty. He gave a cogent version of the events. His version is further corroborated by the A1 statement, the J88, and the investigation diary. His version is sound and credible. This court accepts the version of Constable Molape

[16] The Plaintiff on his own version and as confirmed by his witness was under the influence of alcohol at the time of arrest. He was vague and evasive. The evidence of the Plaintiff is unreliable, inconsistent and is rejected by this court.

[17] The evidence of the witness (Mr. D Malatsi) only goes to the time of the arrest. An inference of bias in respect of the time of the witness’s arrival of the residence of the Plaintiff is drawn by this court in light of the witness’ relationship to the Plaintiff and evidence before this court (he being the brother of the witness). The evidence of this witness that the arrest was between 10 and 11am is hearsay and is accordingly rejected. He evidence does not assist the Plaintiff.

[18] The issue before this court is whether in terms of section 40(1) (b) of the Criminal Procedure Act, the investigating officer reasonably suspected the Plaintiff of the crimes he was charged with and thus lawfully arrested him.

[19] Section 40(1) (b) of the Criminal Procedure Act permits a peace officer to arrest, without a warrant, any person 'whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escape from lawful custody. This section requires suspicion not certainty.

[20] In the unreported matter of Kiviet v M & Others (1361/2021) [2017) ZAGPJHC 368 (8 September 2017) the following was stated: inter alia

(i) All that is required is a reasonable suspicion based on solid grounds, not certainty;

(ii) It cannot be expected of an arresting officer to investigate each and every possible aspect relating to the crime before an arrest is made;

[21] On the version of Constable Malope he had at his disposal and relied on: -

(i) The contents of the A1 statement,

(ii) The interviews with both the victim and the complainant which is corroborated by the A1 statement,

(iii) The fact that the victim had been medically examined by two (2) doctors

whose examinations confirmed anal penetration or an attempt at anal

penetration,

(iv) The Plaintiff was well known to the complainant and victim.

(v) The Plaintiff was pointed out as the perpetrator by the complainant.

[22] In Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818H(SCA), it was held that the test is one of rationality .

[23] The test would then turn on whether:-

(i) A reasonable man acting in the stead of Constable Malope and possessed of the same information would have formed a suspicion and whether such suspicion was based on solid grounds that the Plaintiff had committed the offence as alleged.

(iii) Whether the decision to arrest was a rational one.

[24] Having regard to the conspectus of all the prevailing circumstances as evidenced before this court, this court is of the view that the arresting officer exercised his discretion, in good faith, and rationally. His actions cannot be construed as arbitrary. The arrest by Constable Molape of the Plaintiff was as a result of a reasonable suspicion based on solid grounds.

ORDER

[25] The Plaintiff’s action is dismissed with costs.

S.D. MEERSINGH

ACTING JUDGE OF

THE HIGH COURT

CASE NUMBER: 67744/2016

HEARD ON: 26 November 2021

DATE OF JUDGEMENT: 17 February 2022

FOR THE PLAINTIFF: ADV. P TSHAVHUNGWE

(Instructed by: Mukwevho NP Attorneys)

FOR THE DEFENDANT: ADV. VAN ZYL SC

(Instructed by: State Attorney)