Maqa v Minister of Police and Another (CIV APP RC 12/2023) [2024] ZANWHC 63 (7 March 2024)

IN THE NORTH WEST HIGH COURT, MAFIKENG

CASE NO.: CIV APP RC 12/2023

REGIONAL MAGISTRATES

CASE NUMBER:347/2022

Reportable

Circulate to Judges

Circulate to Magistrates

Circulate to Regional Magistrates

In the matter between:

LEFA NELSON MAQA

Appellant

and

MINISTER OF POLICE

1st Respondent

MOLEBATSI MOSES KGOSIETSILE

2nd Respondent

CORAM: HENDRICKS JP et PETERSEN J

DATE OF HEARING: 23 FEBRAURY 2024

DATE OF JUDGMENT: 07 MARCH 2024

FOR THE APPELLANT: MR. KHUMALO

FOR THE RESPONDENT: ADV. D SMIT

JUDGMENT

Delivered: This judgment was handed down electronically by circulation to the parties’ representatives via email. The date and time for hand-down is deemed to be 14h00pm on 07 March 2024.

ORDER

Resultantly, the following order is made:

(i) The appeal is dismissed.

(ii) The appellant is ordered to pay the costs of the appeal.

HENDRICKS JP

Introduction

[1] This is an appeal against the judgment and order delivered by the Acting Regional Magistrate, Mr. Nkomo, on 31 August 2023. The appellant instituted a claim for damages because of his alleged unlawful arrest and detention for ten (10) days, which was dismissed with costs.

[2] The salient facts of this case can be succinctly summarized as follows. On 24 December 2021, the complainant laid a complaint of rape at the Mmabatho Police Station against the appellant. A case docket was registered, and the case (CAS) number was allocated to the complaint of rape which was lodged by the complainant. Radio contact was made between the police officer in the charge office at Mmabatho Police Station and the arresting officer who was performing patrol duties. The location of the appellant was supplied.

[3] Armed with this information, the arresting officer and a colleague proceeded to the homestead of the complainant, where they met the mother to the complainant. The mother reported to the arresting officer that the appellant had raped the complainant, and that he was asleep in a room that was locked. The mother of the complainant unlocked the room in which the appellant was sleeping. The appellant was awoken by the arresting officer. His constitutional rights were read to him. He was arrested and taken to the police station. He was charged with the offence of rape, and he was detained until his first appearance in court on 28 December 2021. The matter was remanded to 03 January 2022, where bail was fixed in the amount of R1000-00 by the Magistrate, which bail was duly paid. The matter was remanded to 05 May 2022 on which date it was struck from the roll.

[4] Aggrieved by this state of events, the appellant instituted an action for damages, claiming R400 000-00 for unlawful arrest and detention. It is common cause that the arrest was affected without a warrant of arrest. Furthermore, is it undisputed that an arrest may be affected without a warrant on a charge of rape, which is a Schedule 1 offence, but based or premised on a reasonable suspicion.

[5] Section 40(1)(b) provides:

“A peace officer may without warrant arrest any person –

(a) Who commits or attempts to commit any offence in his presence;

(b) Whom he reasonably suspects of having committed any offence referred to in schedule 1, other than the offence of escaping from lawful custody; . . . "

[6] In order to prove that the arrest was lawful, the respondent had to prove that:

· the arresting officer was a peace officer;

· the arresting officer entertained a suspicion;

· that the suspect to be arrested committed an offence referred to in schedule 1; and

· the suspicion rested on reasonable grounds.

[7] On a reading of the record, it does not appear to be in dispute that the arresting officer was a peace officer. It is also not disputed that the offence of rape is a schedule 1 offence. The dispute pertains to how the suspicion was formed and whether the suspicion being so formed, rested on reasonable grounds.

[8] The appeal is based on the following grounds:

(a) That the court a quo erred in finding that the arresting officer exercised a reasonable suspicion that an offence of rape was committed;

(b) That the court a quo erred in finding that the arresting officers’ suspicion was based on information which she received, whilst it was based upon the instruction of a colleague.

[9] The question whether a peace officer reasonably suspects a person of having committed an offence within the ambit of Section 40(1)(b) is objectively justiciable.

See: Minister of Law and Order and others v Hurley and others 1986 (3) SA 568 (A).

It must, at the outset, be emphasized that the suspicion need not be based on information that would subsequently be admissible in a court of law.

See: Biyela v Minister of Police (1017/2020) [2022] ZASCA 26 (01 April 2022).

[10] Based on the evidence presented by the arresting officer, the court a quo concluded that:

“when the arresting officer attended this location, she had been provided with the Appellant's name.”

and that

"this is easy to understand because the evidence directs that the complainant was a girlfriend of the friend of the plaintiff.’’

The Court a quo further summarized:

“The arresting officer confirmed that the arrest was without a warrant of arrest as she based her decision to arrest on the fact that the information received was that the plaintiff was alleged to have been committed a schedule 1 offence. She further based her grounds for the arrest on the fact that she had been provided with a case number. She confirmed that the information she relied upon for her actions was reliable because it was from a colleague.”

[11] Adv Smit on behalf of the respondent submitted in her heads of argument, that the appellant seeks to argue that the arresting officer arrested him without obtaining evidence, without proper investigation and without herself having spoken inter alia to the complainant. The appellant draws into question the reliability of the information the arresting officer received, which led to the arrest. However, it is important that the argument on the reliability of the information, was never put to the arresting officer, and she was never cross examined on this aspect. The reliability therefore came about in closing argument. It is telling that it was never put to the arresting officer that the information is unreliable, or that she should not have relied on the information.

[12] The aforesaid submission is demonstrated in questioning of the arresting officer during cross examination:

“… I am correct to say that you arrest on evidence? - At Mmabatho, Your Worship, in such cases as this of rape, when the case has been opened and they have given out a case number, that gives you the right to go arrest that suspect, if the suspect is known.

…

Look before we go to the sentence without having a docket, without having consulted the complainant, without having evidence, J88 et cetera on this particular matter; you are having nothing. You cannot arrest go and arrest„ you will agree with me? - l can go and arrest that person, Your Worship, because my colleague who is at the charge office, who had taken the statement from the complainant, is the one who gave me that information, that is, that is how work in the, in the [indistinct] he or she is the one who opened the docket. Opening, upon opening the docket he or she managed to consult with the victim, the victim than managed to reveal the name of the, of her suspect.’’

(emphasis added)

[13] The reliability of the information provided to the arresting officer was left greatly unchallenged, as it was never drawn into dispute. It is indeed trite that it is not required that there be evidence of an officer, but rather a reasonable suspicion of the committing of a schedule 1 offence. The question to be answered is whether the arresting officer could have formed a reasonable suspicion on the information provided. In Biyela, supra, the following is stated, which accords with the peculiar facts of this matter:

“The standard of reasonable suspicion is very low. The reasonable suspicion must be more than a hunch; it should not be an unparticularised suspicion. It must be based on specific and articulable facts or information. Whether the suspicion was reasonable, under the prevailing circumstances, is determined objectively.

What is required is that the arresting officer must form a reasonable suspicion that a Schedule 1 offence has been committed based on credible and trustworthy information. Whether that information would later, in a court of law, be found to be inadmissible is neither here nor there for the determination of whether the arresting officer at the time of arrest harboured a reasonable suspicion that the arrested person committed a Schedule 1 offence.

If the testimonies of the recipients of the report are credible, and it is clear that they genuinely acted on the information received from Saunders, there would be nothing wrong in concluding that the suspicion was reasonable under the circumstances because they received it from a credible source. That source was one of their own colleagues specifically tasked with monitoring CCTV cameras in order to report to them, in real-time, the scene of the crime, the kind of crime committed and a description of the person or persons who committed the crime.

l, therefore, agree with the majority's characterisation of the issues and its conclusions that a reasonable suspicion can, depending on the circumstances, be formed based on hearsay evidence, regardless of whether that evidence js later found to be admissible or not. Furthermore, I agree with the conclusion that the court of first instance erred in its conclusion that the police officers could not form a reasonable suspicion because such suspicion was based on inadmissible hearsay evidence.”

[14] The reasoning of the court a quo cannot be faulted where it states as follows:

“Discussion

19. In the main it is argued on behalf of the plaintiff that because the a arresting officer relied in information which was provided by a colleague about whom there is no evidence that he or she is a peace officer himself/herself, the arresting officer should not have effected an arrest. Additionally, it is argued that the arresting officer was not in possession of the case dokect and neither had she seen the complainant. This argument is short of saying that the arresting officer should not have arrested because she relied on hearsay information.

20. Nothing in the empowering section dictates that the arresting officer must be in possession of the case docket or act on first-hand information when deciding to effect an arrest. Nothing in the principals laid in the case law supports the plaintiff’s argument in this regard. Furthermore, it is not a requirement that the arresting officer must

have interviewed the complainant.

Lastly, it is the arresting officer that must be a peace officer for him or her to effect a warrantless arrest. The empowering section does not make the same requirement in respect of the person providing the information upon which the arresting officer acts.

21. It is not in dispute that the plaintiff faced an offence which is listed in schedule 1, it is also not in dispute that he was identified by the complainant when she laid the complaint at the police station. It is not in dispute that the plaintiff was pointed out be the mother to the complainant and was found in the room inside of which the alleged offence was said to have taken place. I have no reason to fault the actions of the arresting officer on the day in question because she

acted on information which was reliable as it came from the police station. It came from a colleague who had interviewed the complainant

and who confirmed that a case number had been allocated.

22. I therefore cannot find in any other way except to conclude that I find her decision to arrest to have been based on credible and verifiable information which informed her decision to act as she acted. She is therefore found to have acted lawfully and reasonably under circumstances. These reasons are the same reasons that I relied on dismissing the plaintiff’s application for absolution from the instance.

In Conclusion

23. Under the circumstances the plaintiff’s action should not succeed and as custom dictates, the plaintiff is to be made to pay the wasted costs.”

[15] There is no merit in the grounds of appeal on which the judgment of the Regional Magistrate is assailed.

Order

[16] Resultantly, the following order is made:

R D HENDRICKS

JUDGE PRESIDENT OF THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

I agree.

A H PETERSEN

JUDGE OF THE HIGH COURT OF SOUTH AFRICA