Minister of Police v Du Plessis (A353/19) [2020] ZAGPPHC 691 (16 September 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case no: A353/19

In the matter between: -

MINISTER OF POLICE

Appellant

and

CEDRICK AUBREY ANDREW DU PLESSIS

Respondent

JUDGMENT

NQUMSE AJ

INTRODUCTION

1. This is an appeal against the judgment of the magistrate for the District of Tshwane held in Pretoria. The plaintiff (in the main action) instituted an action in the magistrate’s court, claiming for damages against the appellant (defendant in the main action) arising out an arrest and detention. The appeal lies against the whole judgment of the magistrate for finding that the arrest was unlawful as well as the defection that followed thereafter.

2. For sake of convenience, I hereafter refer to the parties as they appear in the court a quo.

3. The defendant admitted the arrest and pleaded that the arresting officer who was acting within the cause and scope of the defendant was justified in arresting the plaintiff without a warrant pursuant to the provisions of s 40 (1) (e) of the Criminal Procedure Act 51 of 1977 (CPA) since the plaintiff was found in possession of property which the arresting officer reasonably suspected to be stolen.

BACKGROUNG FACTS

4. During early hours, and around 02h30 on 27 October 2013 at Potchefstroom, plaintiff was arrested by a member of the defendant, sergeant Maketane who was doing patrolling duties around the James Moroka stadium.

5. Sergeant Maketane testified that whilst driving his unmarked police vehicle he noticed two male persons walking fast on the street and one of them was trying to hide something inside his trousers. He ordered them to stop and approached the one he saw hiding something and introduced himself as a police officer. Upon searching him, he found a wire cutter for which the suspect gave an explanation that it was for self defence. On conducting a further search he found a cellphone which had been switched off. Upon enquiring as to its ownership, the suspect claimed it to be his. He demanded that he must switch it on but the suspect was unable to do so. The suspect immediately changed his earlier explanation that the cellphone

belonged to him and said it belonged to his friend Johannes Plaatjies (Plaatjies) whom he was walking with. Makatane turned his attention to Plaatjies and asked if he was confirming that the phone belonged to him. Plaatjies confirmed ownership thereof but he also could not switch it on when he was asked to do so.

6. When Plaatjies was asked where he got the phone from, he said he acquired it from Vodacom. When asked for proof thereof, he said he bought it from a certain lady who was staying at Promosa, an informal settlement at Marikana section. He agreed to take the police to the said location. However upon arrival at the shack house he had pointed, it was empty and appeared to be unoccupied.

7. According to Makatane the unfolding events caused him to suspect that the phone was stolen. As a result thereof he placed both the suspects under arrest for possession of stolen property and suspected housebreaking. He further stated that the area in which he found the suspect is a crime ridden area, where crime is notoriously committed in the early hours of the morning, around the same time he arresting the two suspects.

8. Under cross-examination he was challenged to a great deal as to whether the suspects were running away into separate directions or were they walking fast when he ordered them to stop. Whilst Makatane was not very convincing in his responses in this regard, his final response was that the suspects were walking fast as if they were running away and separately from each other. When it was suggested that after the first suspect had given him an explanation that the phone belonged to his friend, this should have caused him to release the first suspect since any blame on him for possessing the phone

would have been diminished. His response was to the effect that even the second suspect who confirmed ownership of the phone was unable to switch it on and he was therefore unable to know who may have stolen the phone between the two suspects.

9. The first suspect, who it turned out to be the plaintiff, confirms the evidence of the arresting officer to a great extent. He testified that whilst walking with his friend, Plaatjies they were stopped by the police who were in civilian clothes and who were driving in a white bakkie. At the time they were stopped he did not know

that they were police officers.

10. After the police had introduced himself, he searched him and found a cellphone which he said it belonged to his friend, Jason, who in turn confirmed ownership thereof. He further testified that the police asked if the phone had been ‘stolen’ to which he replied he did not know. Subsequently, they were both placed under arrest and detained in a police cell with appalling conditions. The cell had a single toilet that was blocked, with a terrible stench of smell. He

slept on a mattress and he was afraid of other inmates who tossed him around. He also does not know why he not was granted bail on his first appearance in court.

11. When it was put to him in cross-examination if he was aware that the real owner of the phone had been traced, he said he was not aware.

12. It is on the aforegoing facts that the magistrate found that the arrest and detention of the plaintiff was unlawful and consequently ordered the defendant to pay damages in the amount of R105 000.00 to the plaintiff.

ISSUES TO BE DETERMINED

13. The issue to be determined is whether the arrest and detention of plaintiff was unlawful.

14. In the heads of argument the defendant submitted that as a result of the failure by the magistrate to take into account the defence as per the amended plea, the magistrate erred to find in its decision that the defendant did not plead in terms of section 40 (1) (e ) whereas it was pleaded as such.

15. Mr. Loubscher for the plaintiff who also represented the plaintiff in the proceedings in the court- below, submitted that the bundle that was before court and the common facts between the parties was that the plea included a plea of section 40 (1) (b) opposed to the ‘alleged’ amendment in the notice of appeal. It is further submitted in the plaintiff’s heads of argument in paragraph 36 as follows “it is common between the parties that the alleged amended plea upon which ground 2 is based, was not included in the court bundle. This aspect was only raised by appellants’ attorney at the end of the trial during closing submissions. The court also indicated that its bundle did not include the amended plea. The appellant had an obligation to supplement the trial bundle, as in terms of the pre-trial minute dated 27 November 2017, which it failed to do”.

16. In paragraph 31 the heads of argument stated “In this regard the ground for appeal cannot stand, due to the fact that the magistrate had in any event considered the defence of section 40 (1) (e )”.

17. At the outset I find it necessary to deal with this contentious aspect which in my view had a significant bearing on the findings of the magistrate.

18. In the court a quo , Mr. Loubscher submitted that according to the pleadings, the defence relied on the provisions of s 40 (1) (b) of the CPA, not 40 (1) (e ) the latter being, the correct section in terms of which the defendant should have pleaded.

19. However, the plaintiff ignores that the defendant filed a notice to amend its plea, wherefore the plea was amended to read: Take notice that the defendant intends to amend his plea dated 24 November 2017 as follows:

‘By deleting contents of paragraph 4.2.2; 4.2.3 and 4.2.4 of the existing plea in their entirety and substituting them with the following: ‘4.2.2 The plaintiff was arrested for possession of suspected stolen or dishonestly obtained property; 4.2.4 Plaintiff’s arrest without a warrant by members of the SAPS was therefore justifiable in terms of section40 (1) (e) of the Act[1]’

The notice to amend was served on the defendant on 5 September 2018 and was filed on 06 September 2018.

20. It appears that the magistrate was oblivious to the amendment. This is borne out in the second paragraph of his judgment where the following is stated:

‘The defendant defended the proceedings and pleaded that the arrest were justified and in accordance with the provisions of s 40 (1) (b) of the Criminal Procedure Act, 51 of 1977. The magistrate continued with his misunderstanding of the defendant’s plea where in paragraph 10 of the judgment he stated:

“It is clear from the wording of S 40 (1) (b) of the Criminal Procedure Act that it is only when all four of the jurisdictional facts are satisfied that the peace officer may involve the power confirmed upon him by the aforesaid section namely, to in his discretion avert the subject”. (sic)

21. Following this understanding, the magistrate analyzed the evidence in the context of S 40 (1) (b) of the CPA with the applicable case law. The highlight of the magistrate’s ignorance to the amended plea is evident in paragraph 20 of her judgment where the following is stated:

“The defendant’s plea was in terms of s 40 (1) (b) ‘ which was clearly wrong’; and it should have been s 40 (1) (e ) which I have dealt above (sic) she continued and said: “The defendant’s justification should suffer its fate and therefore the defendant failed to cross the jurisdictional factors as set out in Sekhoto and as such the arrest of the plaintiff cannot be justified and the subsequent detention of the plaintiff is to be unlawful.

22. Undoubtedly the magistrate labored on a wrong premise when she held that the defendant’s plea relied on s 40 (1) (b) whereas it was on s 40 (1) (e). Therefore, the magistrate failed to consider whether the defendant has met the jurisdictional facts as required in s 40 (1) (e) of the CPA.

23. I therefore turn to agree with the defendant’s counsel that the magistrate has in this regard erred. Even if I were to consider the submissions of the plaintiff that the magistrate dealt with s 40 (1) (e) albeit not pleaded; the problem that remains is that she did not consider s 40 (1) (e) in the context of the defence that was raised by the defendant.

24. I am however, astounded by the attitude adopted by the plaintiff in this regard. Mr. Loubscher who as indicated above, appeared for the plaintiff in the trial. He was aware that the plaintiff was served with an amended plea that substituted the previous plea in its entirety with a plea in terms of s 40 (1) (e ). However, his brevity persuaded the court to accept that the defence is premised on s 40 (1) (b) and not s 40(1) (e). In my view, he deliberately failed to assist the magistrate who seems to be oblivious to the defendant’s amended plea.

25. This attitude of the applicant was maintained even in the heads of argument in this appeal, where reference is made to an “alleged amended plea” , whereas the plaintiff is fully aware that in truth and in fact the plea was amended. It is expected that counsel for the

plaintiff as an officer of the court should have been candid on this issue.

26. Even if there is merit that the attorney of the defendant raised the issue of s 40 (1) (e) only towards the end of the trial during closing argument, I was still expected from Mr. Loubscher to play open cards with the court to inform it on the existence of the amended plea and not exploit the ignorance of the magistrate. Since according to the pleadings an amended plea was served and filed.

THE LAW

27. Section 40 (1) of the (CPA) governs arrests by a peace officer without a warrant. The defendant relies in its justification for the arrest in section 40 (1) (e) which reads as follows:

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

(a) ……

(b) ……

(c) ……

(d) ……

(e) Who is found in possession of anything which the peace office reasonably suspects to be stolen property or property dishonesty obtained, and whom the peace officer reasonably suspects of having committed an offence with respect to such thing”.

28. In Minister of Law and Order and Others v Hurley and Another,[2] the court stated: “arrest constitutes an interference with the liberty of the individual concerned, and it therefore seems to be fair and just to require that the person who arrested or caused the arrest of another should bear the onus of proving that his action was justified”.

29. This principle was echoed in Zealand v Minister of Justice and Constitutional Development and Another[3] where the following was said:

“[25] This is not something new in our law. It has long been firmly established in our common law that interference with physical liberty is prima facie unlawful. Thus, once the claimant established that an interference has occurred. The burden falls upon the person causing that interference to establish a ground of justification”.

30. In Duncan v Minister of Law and Order[4] the court propounded that jurisdictional facts must exist before the peace officer exercises the powers granted in section 40 (1) of the CPA, namely

(i) The arrester must be a peace officer ;

(ii) The peace officer must entertain a suspicion;

(iii) It must be a suspicion that the arrestee committed a schedule 1 offence;

(iv) The suspicion must rest on reasonable grounds.

31. In Minister of Police and Another v Muller, [5] the Minister pleaded that the offence by the plaintiff was committed in a manner that entitles the arrest of the plaintiff without a warrant of arrest in terms of s40 (1) (b) and in the alternative s 40 (1) (e ) CPA. The court commented and said the following:

“irrespective of which subsection the Minister chooses to rely on, the arresting officer is required to harbor a reasonable suspension that an offence has been committed[6]”.

32. In paragraph [20] the court said:

‘reverting to the provisions of s 40 (1) (b) and (e ) of the CPA, as recorded earlier, in order to carry out an arrest in terms of these provisions the arresting officer must harbor a reasonable suspicion that an offence had been committed’.

33. In Mabona and Another v Minister of Law and Order and Others[7], Jones J, in dealing with the requirement of a reasonable suspicion in s 40 (1) (b) of the CPA said the following:

“The test of whether a suspicion is reasonably entertained within the meaning of s 40 (1) (b) is objective (S v Nel and Another 1980 (4) SA 28(E) at 33 H). Would a reasonable man in the second defendant’s position and 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 his information a reasonable man would bear in mind that the section authorizes drastic police action. It authorized 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 lightly or without checking it where it can be checked. It is only after an examination of this kind that the 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. The section requires suspicion but not certainty. However, the suspicion must be based upon solid grounds. Otherwise, it will be flighty or arbitrary, and not a reasonable suspicion”.

34. In the reading of s 40 (1) (e) it would appear the jurisdictional factors that are required are that:

(a) the person must be found in possession of anything which the peace officer reasonably suspects to be stolen property or dishonestly obtained; and

(b) whom the peace officer reasonably suspects of having committed an offence with respect to such thing.

35. The plaintiff submitted that the arresting officer did not have a reasonable suspicion that an offence had been committed since he failed to investigate the essentials relevant to the offence. It is further submitted that in the absence of evidence that the plaintiff was not a bona fide possessor of the phone, the explanation of the plaintiff was reasonably possible and any doubt the arresting officer may have had, should have been resolved by Plaatjies who confirmed the plaintiff’s explanations.

ANALYSIS

36. Makatane’s testimony that he noticed one of the suspects who turned out to be the plaintiff; trying to hide something in his pants when he saw them was not controverted, either in cross-exanimation or in the testimony by the plaintiff.

37. Whilst the plaintiff testified that he informed the police officer from the outset that the phone belonged to Plaatjies, it was never put to Makatane in cross-examination that it was not true that the plaintiff first claimed ownership of the phone. His evidence on this aspect remained unchallenged.

38. The failure to challenge the evidence of a witness on a particular issue in cross-examination was dealt with in President of the Republic of South Africa v South African Rugby Union[8] as follows:

“[61] The institution of cross-examination not only constitutes a right, it also imposes certain obligations. As a general rule it is essential, when it is intended to suggest that a witness is not speaking the truth on a particular point, to direct the witnesses’ attention to the fact by questions put in cross-examination showing that the imputation is intended to be made and to afford the witness an opportunity, while still in the witness-box, of giving any explanation open to the witness and of defending his or her

character. If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness’s testimony is accepted as correct”

39. In light of the above cited authority, the evidence of the arresting officer that

he saw one of the suspects hiding ‘something’ in his pants, as well as the different explanations that were given by the plaintiff should be accepted as uncontroverted. According to the arresting officer, he followed the subsequent explanation given to him after the plaintiff failed to switch on the phone. The investigation officer appears not to have ignored or brushed aside the explanation of the plaintiff but followed it through. Nevertheless, his efforts came to naught.

40. His investigations did not end with Plaatjies. He went to the place where Plaatjies allegedly acquired the phone. Even then his investigations yielded no results. According to him, his suspicions were formed at the time he received different explanations from the plaintiff and when Plaatjies could not switch on the phone.

41. The question that remains as was formulated in Mabona [9] is ‘would a reasonable men in the position of Maketane faced with the information at his disposal at the time, have considered that there are good and sufficient grounds to reasonably suspect that the plaintiff was in possession of property that he reasonably suspected to be stolen or dishonestly obtained, and reasonably suspected of having committed an offence with respect of such property’.

42. In Woji v The Minister of Police[10] it was said “suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking. Suspicion arisen at the commencement of an investigation of which the obtaining of prima facie proof is the conclusion.”

43. By parity of reasoning, it is undoubtedly clear that when the arresting officer obtained different explanations from plaintiff as to the ownership of the phone taking into account that he had earlier seen the plaintiff hiding ‘something’ in his trousers, surely a reasonable suspicion had been formed. This suspicion was in my view further bolstered when Plaatjies who confirmed that the phone was his would not switch it on, further, when an investigation was conducted on the house where it was allegedly acquired was found empty .

44. The question as to whether the arresting officer has fulfilled the onus of showing that the suspicion is reasonable must be approached objectively[11]

45. Counsel for the plaintiff sought to make heavy weather with the unlawfulness of the search which as he puts it, yielded ‘fruits of a poisonous tree ’. In this regard he submitted that the arresting officer did not seek permission to search the plaintiff, therefore, the search was unlawful. The arresting officer was not led on this aspect during his evidence and has therefore not testified as to whether he asked permission or not to conduct a search on the plaintiff.

46. However, when the plaintiff was asked in cross-examination if permission had been sought before the search, he answered in the affirmative. But his answer was interjected by an objection from his counsel on the basis that the defendant had not pleaded this aspect. Strangely, the magistrate agreed with this proposition and sustained the objection, thereby rejecting the answer that the arresting officer had sought permission to search the plaintiff.

47. It is not apparent on what authority did counsel for the plaintiff rely on when he objected to the response given by the plaintiff and on what basis was the objection sustained.

48. The object of pleadings is to define the issues, and parties will be kept strictly to their pleas where any departure would cause prejudice or would prevent a full enquiry. But within these limits the court has a wide discretion. For pleadings are made for the court, not the court for pleadings[12].

49. The response by the plaintiff was within his knowledge and he was testifying on what had happened to him. For him to be stopped by reason of technicality when there was no prejudice in his testimony, but was instead clarifying an issue that was of assistance to the court, I find it inconceivable. Be that as it may, I am not persuaded that the discovery of the phone pursuant the search is “fruits of a poisonous tree” that tends to show that the arrest was unlawful.

50. In the end. I am satisfied that sergeant Makatane did harbor a reasonable suspicion and did analyze and assess the quality of the information at his disposal sufficiently with an open mind. I therefore do not agree that a reasonable man in his position and possessed with the same information would not have considered that there were good and sufficient grounds to suspect that the plaintiff was involved in the commission of an offence with regard to the cellphone and the other items found in his possession. To hold otherwise would be to eschew the powers of the police under s 40 (1) of the CPA to arrest without a warrant.

51. I now turn to deal with the question whether the detention was lawful.

52. In Hofmeyer v Minister of Justice and Another[13] it was held that even where an arrest is lawful, a police officer must apply his mind to the arrestee’s detention and the

circumstances relating thereto. The failure by a police officer properly to do so is unlawful.

52. In Mvu v Minister of Safety and Security & Another [14] , Willis J held that even where an arrest had been lawful a police officer had to apply his mind to the question of whether the detention of a suspect was necessary at all.

53. Makatane stated in his evidence that he suspected the plaintiff and his friend to have committed housebreaking and theft. This type of an offence falls in the category of serious offences which the court must have been referring to in Minister of Safety and Security v Sekhoto where the following was stated:

“The purpose of the arrest is no more than to bring the suspect before the court (or the senior officer) so as to enable that role to be performed. It seems to me to follow that the enquiry to be made by the peace officer is not how best to bring the suspect to trial: the enquiry is only whether the case is one in which that decision ought properly to be made by a court ( or the senior officer) whether his decision on that question is rational naturally depends upon the particular facts but it is clear that in cases of serious crime and those listed in Schedule 1 are serious, not only because the Legislature thought so – a peace officer could seldom be criticized for arresting a suspect for that purpose. On the other hand there will be cases, particularly where the suspected offence is relatively trivial, where the circumstances are such that it would clearly be irrational to arrest”.

54. Where the suspects like in this case have been arrested at 2:30am with a wire cutter and a cellphone for which there were dubious explanations and where an offence of housebreaking and theft was suspected, the discretion exercised by the police to detain the plaintiff and his companion cannot be said to have been irrational.

55. I am therefore satisfied that the detention was lawful and the appeal ought to be dismissed.

ORDER

56. In the result I issue the following order:

1. The appeal is dismissed, with costs on the party and party scale.

V M NQUMSE

ACTING JUDGE OF THE GAUTENG DIVISION, PRETORIA

I, agree and it is so ordered

JANSE VAN NIEUWENHUIZEN

JUDGE OF THE GAUTENG DIVISION, PRETORIA

APPEARANCES:

Date of Hearing : 4 August 2020

Date of Judgement : 16 September 2020

For the Applicant : Adv. Mothibe

Instructed by

: State Attorney

For the Respondent : Adv. Loubscher

Instructed by

: Jan Ellis Attorneys C/O Loubser Van Der Walt Inc

[1] Appeal Record B (2) (08 July 2020) caselines No 1-145-146 pages 20-21

[2] 1986 (3) SA 568 (A) at 589 E-F

[3] [2008] ZACC 3; 2008 (4) SA 458 at 468 (CC)

[4] 1986 (2) 805 (A) at 818 G-H

[5] 2020 (1) SACR 42 (SCA)

[6] At ibid at para 16

[7] 1988 (2) SA 654 (SE) at 658 E-H

[8] 1999 (10) BCLR 1059 (CC); [1999] Jo 15301 (CC); 2000 (1) SA 1 (CC)

[9] Supra

[10]Woji v The Minister of Police (92/2012 [2014] ZASCA 108 paras 17 and 18

[11] Minister of Safety and Security and Another v Swart 2012 (2) SACR 226 (SCA) at par 20

[12] Beck’s Theory & Principles of Pleadings in Actions, 6th Ed. Pp 43-44.

[13] 1992 (3) SA 108 ( C)

[14] 2009 (2) SACR 291 (GSJ)