Minister of Police v Dunjana and Others (01/2015) [2019] ZAECPEHC 49 (13 August 2019)
The court found that the evidence regarding the identification of the silver Polo vehicle and the information provided to the police, although not conclusive, was not insignificant. The possibility that another court may find the suspicion reasonable was sufficient to establish prospects of success on appeal. The...
Source-derived case information.
- Citation
- [2019] ZAECPEHC 49
- Parties
- Applicant: Minister of Police; Respondent: Luvuyo Fundile Dunjana; Respondent: Samkelisiwe Mzamo Hopa; Respondent: Chuma Fuyisizwe Kosana; Respondent: Sinekaya Mcopela; Respondent: Luyanda Nzo; Respondent: Sinethemba Payi; Respondent: Melikhaya Tanca
- Court
- Eastern Cape High Court, Port Elizabeth
- Jurisdiction
- South Africa
- Case Number
- 01/2015
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Against Judgment Awarding Damages for Unlawful Arrest and Detention.
- Outcome
- Leave to appeal granted to the Full Bench of the Eastern Cape Division. Costs to be costs in the appeal.
- Judges
- E Revelas
- Legal Topics
- Leave to Appeal, Unlawful Arrest, Unlawful Detention, Damages Award, Reasonable Suspicion
Source-derived case record
Summary, issues, holding and outcome
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Parties
Minister of Police
Applicant
Luvuyo Fundile Dunjana
Respondent
Samkelisiwe Mzamo Hopa
Respondent
Chuma Fuyisizwe Kosana
Respondent
Sinekaya Mcopela
Respondent
Luyanda Nzo
Respondent
Sinethemba Payi
Respondent
Melikhaya Tanca
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Judgment Awarding Damages for Unlawful Arrest and Detention.
Legal Issues
- 1 Whether the applicant has reasonable prospects of success on appeal regarding the finding of unlawful arrest and detention.
- 2 Whether the evidence justified a reasonable suspicion for the arrest of the respondents.
- 3 Whether discrepancies in police testimony undermine the applicant's case.
Ratio Decidendi
The court found that the evidence regarding the identification of the silver Polo vehicle and the information provided to the police, although not conclusive, was not insignificant. The possibility that another court may find the suspicion reasonable was sufficient to establish prospects of success on appeal. The applicant was therefore granted leave to appeal to the Full Bench, as the threshold for granting leave to appeal was met.
Court Disposition
Leave to appeal granted to the Full Bench of the Eastern Cape Division. Costs to be costs in the appeal.
Orders
- The applicant is granted leave to appeal to the Full Bench of the Eastern Cape Division.
- Costs are to be costs in the appeal.
Full Case Text
Judgment text and source record
37 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION – PORT ELIZABETH
Case No.: 01/2015
In the matter between:
MINISTER OF POLICE
Applicant
And
LUVUYO FUNDILE DUNJANA
First Respondent
SAMKELISIWE MZAMO HOPA
Second Respondent
CHUMA FUYISIZWE KOSANA Third Respondent
SINEKAYA MCOPELA
Fourth Respondent
LUYANDA NZO Fifth Respondent
SINETHEMBA PAYI Sixth Respondent
MELIKHAYA TANCA
Seventh Respondent
JUDGMENT
REVELAS J:
1. The appellant seeks leave to appeal against the whole of the judgment of Tshiki J delivered on 4 May 2017. Pursuant to an action for damages instituted by the plaintiffs for their alleged unlawful arrest and detention, the court a quo awarded each of the respondents an amount of R500 000,00 as damages having found that their arrest and detention was unlawful in the circumstances.
2. It is common cause that a retail store (Kwikspar) in Gelvandale was robbed on 15 June 2013 by several men. Warrant Officer Botha found an empty white Nissan bakkie close to the scene of the robbery. He found it suspicious. He alleged that a bystander advised him that the bakkie had been at the scene of the robbery, but that the occupants of the bakkie had left in a silver Polo vehicle. This informant could not remember the numbers of the Polo’s registration plate, but was able to recall the letters on the number plate being FYZ … EC. A silver Polo with registration number FYZ 815 EC was later detected in Ngalo Street where the plaintiffs were arrested.
3. No weapons nor any proceeds of a robbery were found on the plaintiffs who were made to lie on the ground for three hours. Captain Dippenaar conferred with Warrant Officer Botha about clothes found in the vehicles in question and the clothes worn by the robbers as seen by Dippenaar on images captured on a Close Circuit Television Security camera installed at the Kwikspar.
4. The respondents argue that the clothing identified was actually just a black leather jacket, a type of garment, very popular amongst the general population.
5. In addition, the respondents also relied on the discrepancies in the testimonies of Botha and Dippenaar which justified the rejection of the applicant’s version and bolstered the case for the respondents (as held by the court a quo).
6. In my view, the evidence regarding the information given about a certain silver Polo with – albeit only part of a registration number - seen at the robbery, which was then found at the place of arrest, is not insignificant. Another court may very well find that the aforesaid information, plus what Dippenaar had told Botha, was a justifiable basis for a reasonable suspicion. Therefore the applicant has prospects of success.
Order:
1. In the circumstances, the applicant is granted leave to appeal to the Full Bench of the Eastern Cape Division.
2. Costs are to be costs in the appeal.
_____________________
E REVELAS
Judge of the High Court
Appearances:
For the Applicant: Adv Moorehouse instructed by the State Attorney, Port Elizabeth
For the Respondents: Adv Wolmarans instructed by Egon A Oswald Attorneys at law, Port Elizabeth
Date heard: 8 August 2019
Date delivered: 13 August 2019