Mmamatshenya and Others v Minister of Police and Another (4063/2019) [2023] ZALMPPHC 7 (10 February 2023)

IN THE HIGH COURT OF SOUTH AFRICA

LIMPOPO DIVISION, POLOKWANE

CASE NO: 4063/2019

REPORTABLE: YES

OF INTEREST TO OTHER JUDGES: YES

REVISED.

DATE: 10/02/2023

In the matter between: THOMAS THABO MMAMATSHENYA FIRST PLAINTIFF JERRY KAGISO KUBAL SECOND PLAINTIFF KOKETSO MOLAPO THIRD PLAINTIFF V MINISTER OF POLICE FIRST DEFENDANT WARRANT OFFICER GT NKONA SECOND DEFENDANT

JUDGMENT

G J DIAMOND AJ:

[1] The Plaintiffs instituted a claim against the Defendants, jointly and severally, for their unlawful arrest and unlawful detention.

[2] The parties agreed, in terms of the stipulations of Rule 33 (4), that the question of the liability of the Defendants towards the Plaintiffs shall be determined separately.

[3] The Plaintiffs allege, in their Particulars of Claim, that they were arrested without a warrant and detained by members of the South African Police Service, and more in particular by the Second Defendant. They allege that there was no justification for their arrest, and they seek to hold the First Defendant liable for damages suffered by them as a result of the unlawful arrest, by reason of the fact that the Second Defendant acted within the scope of his employment. They also seek to hold the First and Second Defendants liable, jointly and severally liable for damages suffered. The Particulars of Claim do not contain any explicit allegations that relate to the fact that the Plaintiffs seek to hold First and Second Defendants jointly and severally liable.

[4] The Defendants admit, in their amended plea, the arrest and detention, but they plead that the arrest and detention was justified.

[5] They admit, in their amended plea, the allegation in paragraph 4.2 of the Particulars of Claim, that the arrest and the detention, was affected for "possession of suspected stolen goods."[1] and rely explicitly on section 40(1)(a) of the Criminal Procedure Act of 1977. As explanation the Defendants plead that the Plaintiffs were suspected of having committed an offence referred to in Schedule 1

which is the possession of suspected stolen goods. I will return to this plea and explanation, later in the judgment.

[6] The Plaintiff plead, in paragraph 5 of the Particulars of Claim, the violation of several of Plaintiffs' constitutional rights. The relevance of these allegations are explained in paragraph 5.8 to be that "..the 1st defendant failed to consider the plaintiffs' constitutional rights ...". This is the only explanation for the reference to the constitutional rights of the Plaintiffs, in the Particulars of Claim.

[7] The parties also agreed, quite correctly, that, given the admission of the Defendants, that the Defendants carry the onus to allege and prove the lawfulness of the arrest.[2] I have to add at this juncture already that the statement that the state has the onus to prove the lawfulness of the arrest, is

undoubtedly correct in the light of the caselaw. Although undoubtedly correct, it is a course description of the question of onus. will return to this aspect.

[8] The Defendants called the Second Defendant as well as a police officer, one Warrant Officer Chauke, as witnesses. The Third and the Second Plaintiffs were called to answer to the case put forward by the Defendant.

[9] The totality of evidence and cross examination in the case lasted two full days. Despite these lengthy proceedings, all the salient facts in this dispute are for all practical purposes common cause between the parties. The question is, what inferences should be drawn from these common cause facts, and whether this inferences within the context of these facts support a conclusion that the arrest was justified, as alleged by the Defendants.

[10] The facts giving rise to the claim are relatively simple.

[11] The Second Defendant testified that he was on duty on the morning of the 6th June 2018, at the Police station at Saselemani, in the Giyani district. He received a telephone call, from an anonymous caller. He testified that the anonymous caller indicated to him that "... there were certain people selling clothes and the suspected clothes could be stolen".[3] He testified that he immediately went to the scene to investigate the allegations.

[12] Arriving at the scene, he encountered the three Plaintiffs. He introduced himself. The first thing that he enquired from them: , " where did they get the goods from.?". They responded that they bought it in Marabastad.[4]

[13] After having obtained the above information, he asked two further questions, firstly whether they had the receipts of the purchase of the goods and secondly whether they had a trading license to trade with the merchandise. The Plaintiffs responded that they did not have the receipts, nor did they have a license to trade.

[14] The Second Defendant testified "So after their reasons- no receipt and no hawkers license - I arrested them" and he continued that "I told him because you could not produce either, I took them to the police station."

[15] He proceeded to testify, in his evidence in chief, that at the police station, he opened a case docket for further investigation by Warrant Officer T R Chauke.

[16] Counsel for the Defendants asked the following question during the evidence in chief "What were you detaining them for?" and he replied "Main purpose was for further investigation and if he finds that they have the two items - they can be released''.

[17] Counsel for the Defendant further asked: "After telling you they bought at Marabastad, what made you not to believe them?'' and he responded by saying the mere fact that they could not produce the receipts or a copy of the hawker's license.

[18] Counsel for the Defendant posed, in my view, the following very important question: "Why did you not make follow ups after they told you that they bought it from Marabastad?" and he replied: "The investigation officer would go and investigate."

[19] He testified that, after he handed the Plaintiffs over to the investigating officer, he was not involved in the case any further and only took notice of what happened subsequently when he received the summons to appear in the High Court.

[20] He also testified that he took notice[5] that similar new products, sold at a price of R 600-00 per pair of shoes, whereas the Plaintiffs sold a pair of shoes for R 50-00. He testified that the main reason for his suspicion was the fact that the Plaintiffs could not produce a receipt of the supplier where they bought the goods, but the purchase price added to the suspicion that he had.

[21] Warrant Officer Nkuna further testified that housebreaking is rife in the vicinity.

[22] After the evidence in chief, Counsel for the Plaintiffs cross examined Warrant Officer Nkuna. The cross examination revolved extensively around the way in which the arrest was carried out, was very often argumentative and dealt extensively with the alleged violation of the Plaintiffs' constitutional rights. In my view, this cross examination yielded very little in support of the Plaintiffs' case. I will refer to this aspect later in the judgment, but I wish to state at this juncture that I am not going to refer to any of these questions and answers in this judgment.

[23] There is, however, one noteworthy aspect resulting from the cross examination. Counsel for the Plaintiff stated that the Plaintiffs

would testify that the witness gave, as reason at the time and on the scene of the arrest, that they were arrested for the reason of selling "fongkong".[6] The witness denied this and persisted right through the cross examination that he affected the arrests because Plaintiffs could not produce receipts nor traders' licenses.

[24] Warrant Officer Chauke was the second and witness for the defence. He testified that the accused were brought to him on 6 July 2018, together with a case docket, which he perused. He interrogated the Plaintiffs, after which he took them to the cells and detained them. On 7 July 2018, he took them to the public prosecutor for the purpose to have them brought before the court. The prosecutor perused the court file and refused to bring the accused before court, and the Plaintiffs were released.

[25] Chauke responded in cross examination, when asked why he decided to detain the Plaintiffs, that "I found them already detained''.

[26] When asked in cross examination what his interrogation of the Plaintiffs yielded, they "came with a second story" and that is that they bought the goods from a person wandering around in Marabastad.

[27] The first witness for the Plaintiffs, was the Third Plaintiff. He testified that he sold his merchandise all over the vicinity where he was arrested, and that he initially bought the merchandise in Marabastad. He identified the place where you bought the goods as "Thomas Magama shops", and he testified that at the time of the purchase he was not given an invoice or slip of any kind. He denied that the goods that they were selling, were stolen goods.

[28] The second witness for the Plaintiffs, was the Second Plaintiff. His testimony corroborated that of the Third Plaintiff. He also confirmed, during cross examination, that they indicated to the two police officers, that they could take the police officers to the shop where they bought in Marabastad, viz the "Magana Shops".

[29] Although the evidence in chief as well as the cross examination ventured well beyond what was described above, in my view, the above succinct summary provides the evidential basis to adjudicate this claim.

[30] The question therefore is, was this arrest and detention lawful, given the evidence?

[31] The Defendants seek to justify the arrest and detention on the provisions of Section 40 of the Criminal Procedure Act, 51 of 1977 ("Section 40").

[32] Section 40 stipulates as follows:

"40 Arrest by peace officer without warrant

(1) 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 an offence referred to in Schedule 1, other than the offence of escaping from lawful custody;

(c) who has escaped or who attempts to escape from lawful custody;

(d) who has in his possession any implement of housebreaking or carbreaking as contemplated in section 82 of the General Law Third Amendment Act, 1993, and who is unable to account for such possession to the satisfaction of the peace officer; [Para. (d) substituted by s. 41 of Act 129 of 1993.

(e) who is found in possession of anything which the peace officer reasonably suspects to be stolen property or property dishonestly

obtained, and whom the peace officer reasonably suspects of having committed an offence with respect to such thing;

(f) who is found at any place by night in circumstances which afford reasonable grounds for believing that such person has committed or is about to commit an offence;

(g) who is reasonably suspected of being or having been in unlawful possession of stock or produce as defined in any law relating to the theft of stock or produce;

(h) who is reasonably suspected of committing or of having committed an offence under any law governing the making, supply, possession or conveyance of intoxicating liquor or of dependence-producing drugs or the possession or disposal of arms or ammunition;

(i) who is found in any gambling house or at any gambling table in contravention of any law relating to the prf3vention or suppression

of gambling or games of chance;

(j) who wilfully obstructs him in the execution of his duty;

(k) who has been concerned in or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists that he has been concerned in any act committed outside the Republic which, if committed in the Republic, would have been punishable as an offence, and for which he is, under any law relating to extradition or fugitive offenders, liable to be arrested or detained in custody in the Republic;

(I) who is reasonably suspected of being a prohibited immigrant in the Republic in contravention of any law regulating entry into or

residence in the Republic;

(l) who is reasonably suspected of being a deserter from the South African National Defence Force;

(m) who is reasonably suspected of having failed to observe any condition imposed in postponing the passing of sentence or in suspending the operation of any sentence under this Act;

(n) who is reasonably suspected of having failed to pay any fine or part thereof on the date fixed by order of court under this Act;

(o) who fails to surrender himself in order that he may undergo periodical imprisonment when and where he is required to do so under

an order of court or any law relating to prisons;

(p) who is reasonably suspected of having committed an act of domestic violence as contemplated in section 1 of the Domestic Violence Act, 1998, which constitutes an offence in respect of which violence is an element.

(2) If a person may be arrested under any law without warrant and subject to conditions or the existence of circumstances set out in

that law, any peace officer may without warrant arrest such person subject to such conditions or circumstances.

[33] Subsection 1 of Section 40 authorises a peace officer to arrest a person without a warrant under conditions stipulated in subsection 1. Apart from that, subsection 2 stipulates that the peace officer shall be entitled to arrest a person without a warrant, if such an arrest is authorised in the circumstances set out in any other law.

[34] The Supreme Court of Appeal, remarked, in a judgement of Harms DP, in MINISTER OF SAFETY AND SECURITY v SEKHOTO AND ANOTHER[7] ("Sekhoto"), that High Courts very often fail to interpret statutes correctly against the backdrop of the Bill of Rights. The court then proceeded to provide a framework to do such interpretation correctly, and the court does so within the framework of Section 40.

[35] The judgment in Sekhoto rules that the assessment whether an arrest without a warrant was lawful, entails two distinct and separate phases. The first phase, which I shall call for purposes of this judgement Phase 1, is to adjudge whether the evidence before the court justifies the conclusion that certain necessary so-called "jurisdictional facts", were present at the time of the arrest.

[36] The Court stated explicitly that the jurisdictional facts for the various paragraphs of section 40(1) differ and proceeds to consider the required jurisdictional facts for reliance on section 40(1)(b) that need to be proved, for the state to justify the conclusion that the arrest was lawful.

[8]

[37] However, a conclusion that the jurisdictional facts are indeed present, may not be conclusive in the end.

[38] After Stage 1 of the enquiry, a peace officer must show that he exercised his discretion to effect an arrest, in a lawful manner, keeping in consideration also the dictates of the Bill of Rights. I shall call the second stage for purposes of this judgement, Stage 2.

[39] The court remarks in Sekhoto, that the requirement of a proper exercise of a discretion, is not one of the jurisdictional facts that must be considered during the assessment of Stage I. To do so would mean that one would conflate the question of jurisdictional facts on the one hand with the exercise of discretion on the other hand, which would lead to an improper conclusion on the question as to whether a particular arrest was lawful. In Paragraph 45 of the judgment, the court Stated that the High Court in Louw v Minister of Safety and Security 2006 (2) SACR 178 (T), conflate the two different considerations. The court found that the High Court, in Louw, elevated the requirement that a discretion to arrest or not, has to be exercised in a manner that is consistent with the Bill of Rights, to a further jurisdictional requirement. To do this, so the court states in Sekhoto, is unjustified.

[40] If an analysis regarding the presence or not of the required jurisdictional facts lead to the conclusion that at least one of the jurisdictional facts are not present, then the arrest is clearly unlawful and unjustified and the consideration of issues regarding Stage 2 of the enquiry[9], does not even come into play.

[41] Of equal importance though, are the implications of the two-stage process for the question of onus, and the requirement for the pleadings.[10]

[42] In my view, the following statement of the judgment, is of pivotal importance:

"[47] All this and more have already been stated by Heter JA in Dempsey. I do recognise that the context was somewhat different and that he was dealing with motion proceedings and not trials.

[48] As to the general principle, he said:

'Once the jurisdictional fact is proved by showing that the functionary in fact formed the required opinion, the arrest is brought within the ambit of the enabling legislation and is thus justified. And if it is alleged that the opinion was improperly formed, it is for the party who makes the allegation to prove it. There are in such a case two separate and distinct issues, each having its own onus (Pillay v Krishna and Another 1946 AD 946 at p 953). The first is whether the opinion was actually formed; the second, which only arises if the onus on the first has been discharged I or if it is admitted that the opinion was actually formed, is whether it was properly formed.'

[49] Does the Constitution require another approach? I think not. A party who alleges that a constitutional right has been infringed bears the onus. The general rule is also that a party who attacks the exercise of discretion, where the jurisdictional facts are present, bears the onus of proof. This is the position whether or not the right to freedom is compromised. For instance, someone who wishes to attack an adverse parole decision bears the onus of showing that the exercise of discretion was unlawful. The same would apply when the refusal of a presidential pardon is in issue.

[50] Onus in the context of civil law depends on considerations of policy, practice and fairness; and, if a rule relating to onus is rationally based, it is difficult to appreciate why it should be unconstitutional. Heter JA also raised the issue of litigation-fairness and sensibility. It cannot be expected of a defendant, he said, to deal effectively, in a plea or in evidence, with unsubstantiated averments of ma/a tides and the like, without the specific facts on which they are based being stated. So much the more can it not be expected of a defendant to deal effectively with a claim - as in this case - in which no averment is made, save a general one that the arrest was 'unreasonable'. Were it otherwise, the defendant would in effect be compelled to cover the whole field of every conceivable ground for review, in the knowledge that, should he fail to do so, a finding, that the onus has not been discharged, may ensue. Such a state of affairs, said Heter JA, is quite untenable."

[43] The effect of the above paragraphs is clear. The general approach by practitioners, and sometimes by the Courts, viz, that once the arrest is admitted by the state, then the onus to prove that the arrest was unlawful and justified rests on the state, is an oversimplification.

[44] The question regarding onus should be stated properly, and that is, that once it is found that all the jurisdictional facts for an arrest, are present, then the onus to prove that a peace officer exercised his/her discretion unlawfully, rests on the Plaintiff. In such an event the Plaintiff must raise the question of the exercise of a discretion in dispute in its pleadings, either the particulars of claim or the replication, in the normal manner, after which the Plaintiff shall bear the onus to proof that the discretion was exercised unlawfully.

[45] It is apposite at this stage, to state something further about "the onus".It seems to me that the onus that the rests on the state to prove the presence of the necessary jurisdictional facts, before an arrest can be considered to be lawful, is an onus in the true sense of the word (a" full onus"). The word "onus" is sometimes used to mean the duty to adduce rebutting evidence. A "full onus" however, means three things, that is that the person bearing the onus shall make the necessary allegations in the pleadings, shall lead evidence substantiating the allegations, and

the evidence shall be of such a nature that it shall prove on a balance of probabilities, that the jurisdictional facts were present.

An onus in the sense of a duty to lead to rebutting evidence, would only mean that a litigant would be obliged to lead evidence that would destroy the prima far case of the other party. There is no need for such a person to prove anything on a balance of

probabilities.[11]

[46] The nature of the exercise of the discretion to arrest, also needs attention. The court states in Sekhoto, that the traditional common-law grounds of review should be used to test the legality of the exercise of discretion to arrest.[12] That means that the discretion should be exercised in good faith, rationally and not arbitrarily.[13]

[47] To summarise therefore, once the arrest is admitted by the Defendant, the Defendant has a true onus to establish the presence of all the jurisdictional facts. Should the Plaintiff wish to attack the lawfulness of the arrest on the basis of the discretion, then the Plaintiff bears the full onus to prove that.

[48] It is at this stage where the issue of constitutionality comes into play.The dictates of the Bill of Rights, within the concrete set of facts, may lead to a conclusion that, although all the jurisdictional facts were present, the discretion was exercised in a manner that violates the stipulations of the Bill of Rights[14], and that since the exercise of the discretion was unlawful, for this reason, the arrest would also be unlawful.

[49] The approach of the parties in casu provides a vivid illustration of the conflation of issues regarding the exercise of the discretion to arrest, with that of the presence or not of jurisdiction facts for a lawful arrest. The pleadings are imprecise, confusing and for that reason the presentation of the evidence lacked the necessary focus and the arguments advanced by the parties are replete with the above­ mentioned unnecessary conflations.

[50] In my view, the adjudication of the above dispute is relatively simple.

[51] Any enquiry about whether an arrest can be justified in terms of Section 40, must proceed with an assessment of the evidence for purposes of adjudicating Stage I, described above.

[52] The question therefore is, what are the necessary jurisdictional facts that must be present before arrest can be consider to be lawful in terms of the prescriptions of Section 40 ?

[53] To rely on Section 40(1)(b)[15], for the arrest without a warrant, the following jurisdictional facts need to be present: (i) the arrestor must be a peace officer; (ii) the arrestor must entertain a suspicion (iii) the suspicion must be that the suspect (the arrestee) committed an offence referred to in Schedule 1; and (iv) the suspicion must rest on reasonable grounds.

[54] The above list of jurisdictional facts follows quite simply from an analysis of the wording Section 40(1)(b).

[55] So, the question is, what would the jurisdictional facts that need to be present be, before arrest can be justified in terms of Section 40(1)(a)?[16]

[56] An analysis of section 40(1)(a) reveals that the following jurisdictional facts should be present before it can be concluded that an arrest can be justified in terms of the stipulations of section 40(1)(a): i) The arrestor must be a peace officer ii) the person that stand to be arrested must commit or attempt to commit a crime and, iii) the commission or attempted commission of the crime must take place in the presence of the peace officer.

[57] It is immediately clear that the required jurisdictional facts contemplated by the two sections, are different.

[58] In the instance of section 40(1)(a) it must be clear that an offence, no matter how triviaI[17], is committed or attempted to be committed, in the presence of the police officer. There is no reference to any suspicion, and for that reason also no reference to any fact that the suspicion must rest on reasonable grounds

[59] The question is, on which of the grounds does the Defendant rely, and which did they prove, if anyone at all?

[60] In this regard, the plea is already confusing.

[61] The Defendants state, in paragraph 8.3, that the arrests were carried out and was justified in terms of section 40(1)(a). The Defendants proceeds, however plead further that the plaintiffs were suspected of having committed an offence referred to in Schedule 1, in other words in terms of section 40(1)(b), and the arrest was carried out on the basis of this suspicion.

[62] The Defendants would of course be entitled to rely on both defences, provided that one of the defences must be pleaded in the alternative in a sensible manner, if at all possible. This was however not done. The pleadings create the impression that the defendants rely simultaneously on both.

[63] I will consequently proceed to consider the arrests within the context of both Sections 40(1)(a) and Section 40(1)(b).[18]

[64] In argument of counsel representing the Defendants, he doubles down on the allegation that the arrest was effected in terms of Section 40(1)(a). I quote from the heads of argument of the Defendant:

"When W/O Nkuna and his colleague arrived at the Malamulele Complex they found the Plaintiffs busy selling sneakers. After failing to give account to the goods they were selling, they were literally caught in the act. It therefore can safely be said that the Plaintiffs have committed an offence in the presence of the arresting police officer."

[65] I do not agree. The first jurisdictional fact that need to be established, is that the arrestor must be a peace officer. This is common cause between the parties, and it poses no problem.

[66] The Second and the Third jurisdictional facts, are whether the Plaintiffs committed an offence, and if so, they did so in the presence of the peace officers.

[67] In order to assess this question, it is, in my view, important to distinguish clearly between the different possible crimes that involve theft.

[68] Two common law crimes exist, firstly theft[19], and secondly the crime of receiving stolen property knowing it to be stolen[20]. Both these crimes are crimes in own right and are common law crimes.

[69] There is however a third crime involving the theft: and that is the crime created by Section 36 of the General Law Amendment Act of 1955, which provides that a person who is found in possession of goods (other than stock of produce under the stock theft act) in regard to which a reasonable suspicion exists that they have been stolen, and who is unable to give a satisfactory account of his or her possession, is guilty of the crime, and on conviction punishable with the penalties applicable to theft.[21]

[70] The elements of the crime created in terms of Section 36, are thus the following: a) a person must be found in the possession of goods, b) there must be a reasonable suspicion that the goods were stolen c) the person in possession of the goods must have been unable to give a reasonable account for his or her possession and d) the intention to commit the crime.

[71] To prove Section 36 crime the following is normally necessary[22]:

"The normal and proper thing in cases of this kind is that the State calls some person, frequently a policeman, who says that he found goods in the possession of the suspect. He then states his reason for suspecting that the goods were stolen and then states whether or not the suspect afforded an explanation of his possession."

[72] It is therefore clear that the state must prove that the police officer harboured a suspicion that properties in the possession were stolen. Not only that, but the peace officer must also give the reasons why they believed that the properties were stolen and the reason must be reasonable. Only once that has been established and is clear, can the peace officer demand an explanation, from the person possessing the goods, to explain the possession of the goods.

[73] There are several differences between the two common law crimes, and the statutory crime referred to above. Relevant for purposes of this judgement is that, for an accused to be convicted to have committed the two common law offences referred to above , the state must be able to prove theft. For the statutory offence in terms of Section 36, the state needs only prove a reasonable suspicion that the goods were stolen, in other words the state does not have to prove that the good were in fact stolen, and the person in possession of the goods cannot give a satisfactory account of the possession.

[74] In my view the evidence, and the argument advanced as referred to above, in this case reveals that warrant officer Nkuna misunderstood the implications of Section 36.

[75] The reference in paragraph 5.1 and the continued referencing evidence in chief and cross examination could only have referred to section 36 discussed above. In paragraph 5.1, the plea states "....the plaintiffs were arrested without warrant and detained for alleged possession of suspected stolen goods ... ". This statement cannot in any way relate to any one of the two common law crimes mentioned above. It can conceivably only refer to the Section 36 common law crime.

[76] The evidence clearly indicates, that when warrant officer Nkuna arrived at the scene and found the Plaintiffs in the possession of goods, he demanded an explanation, and only after he found the explanation to be unsatisfactory, concluded that the goods were stolen.

[77] What warrant officer Nkuna did, was to apply the stipulations of section 36 in reverse - and that is he regarded himself competent and entitled to demand an explanation, and it is only after the explanation was given and he regarded that as unsatisfactory, that he concluded that there was a reasonable suspicion that the goods were stolen. This approach is clearly wrong.

[78] I do not think furthermore that it can be argued that the evidence did in fact reveal that he harboured the reasonable suspicion that the goods were stolen. Warrant officer Nkuna testified that he went to the scene after he received an anonymous phone call indicating to him that the Plaintiffs were in possession of goods which could possibly be suspected as stolen goods. He arrived at the scene and immediately demanded an explanation from the Plaintiffs about their possession of the goods. He did not undertake any investigation on his own. In the light of this it can be concluded that he could not have harboured a reasonable suspicion that the goods were stolen. Failing the independent existence of such a reasonable suspicion, the failure[23] to provide an explanation to his satisfaction, cannot constitute a crime.

[79] Once the above is concluded, there is only one conclusion, and that is that there was no offence committed or attempted to be committed in the presence of Warrant Officer Nkuna.

[80] Since no offence was committed, one of the jurisdictional facts to justify an arrest in terms of section 40(1)(a), could not be proven to be present.

[81] Even if I am wrong with the above analysis, the evidence in the case provides another clue. Warrant Officer Nkuna testified explicitly that he took the Plaintiffs to the police station, and handed them over to warrant officer Chauke, with the sole purpose that warrant officer Chauke shall investigate whether the explanation given by the Plaintiffs was true, and if so, to release them. This indicates clearly that he did not regard the Plaintiffs to have committed the crime in his presence, and that further investigation was needed before the conclusion could be drawn as to whether the Plaintiffs committed a crime.

[82] What about the question whether the arrest could have been effected in terms of section 40(1)(b)?

[83] One of the jurisdictional facts that must be present before an arrest can fall within the ambit of Section 40(1)(b), is that there must be a reasonable suspicion that the person committed a crime in terms of Schedule 1 of the Criminal Procedure Act.

"Schedule 1

(Sections 40 and 42)

Treason.

Sedition.

Public violence.

Murder.

Culpable homicide.

Rape or compelled rape as contemplated in sections 3 and 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively.

Sexual assault, compelled sexual assault or compelled self-sexual assault as contemplated in section 5, 6 or 7 of the Criminal Law (Sexual

Offences and Related Matters) Amendment Act, 2007, respectively.

Any sexual offence against a child or a person who is mentally disabled as contemplated in Part 2 of Chapter 3 or the whole of Chapter 4 of the

Criminal Law (Sexual Offences and Related Matters) Amendment Act,

Trafficking in persons as provided for in section 4 and involvement in the offence as provided for in section 10 of the Prevention and Combating of Trafficking in Persons Act, 2013.

Bestiality as contemplated in section 13 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.

Robbery.

Kidnapping.

Childstealing.

Assault-

(a) when is a dangerous wound inflicted;

(b) involving the infliction of grievous bodily harm; or

(c) where a person is threatened-

(i) with grievous bodily harm; or

(ii) with a firearm or dangerous weapon, as defined in section 1 of the Dangerous Weapons Act, 201 (Act 15 of 2013).

Arson.

Malicious injury to property.

Breaking or entering any premises, whether under the common law or a statutory provision, with intent to commit an offence.

Theft, whether under the common law or a statutory provision.

Receiving stolen property knowing it to have been stolen.

Fraud.

Forgery or uttering a forged document knowing it to have been forged.

Offences relating to the coinage.

Any offence, except the offence of escaping from lawful custody in circumstances other than the circumstances referred to immediately hereunder, the punishment wherefor may be a-period of imprisonment exceeding six months without the option of a fine.

Escaping from lawful custody, where the person concerned is in such custody in respect of any offence referred to in·this Schedule or is in such

custody in respect of the offence of escaping from lawful custody.

Offences referred to in section 4 (1) and (2) of the Prevention and Combating of Torture of Persons Act, 2013.

Offences referred to in Chapter 2 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004 (Act 33 of 2004).

Any conspiracy, incitement or attempt to commit any offence referred to in this Schedule.

[85] What is immediately clear is that the two common law instances of theft, do appear in the Schedule. What does not appear is the crime created in Section 36 of the General Law Amendment Act, 1955.

[86] The question can be raised whether the item in the schedule "Theft, whether under the common law or a statutory provision.", could be interpreted to refer to Section 36, since section 36 is a statutory crime. I do not think so. What the item clearly envisages,

is theft, that is an act whereby one person removes the property belonging to another person with a clear purpose - in other words a contrectatio must have been committed. The prohibited conduct in Section 36, is the possession of suspected stolen property, and the prohibited conduct is not defined with reference to any of contrectatio by the suspect.

[87] The crime which Warrant Officer Nkuna suspected the Plaintiffs of having committed (that is if one assumes for the purpose of the argument for the moment that Warrant Officer Nkuna did harbour such suspicion and that the suspicion was reasonaple - which is once again far from established), viz, the crime created In Section 36, does not appear in Schedule 1.

[88] This means that at least this jurisdictional fact (and maybe possibly more), does not exist to justify an arrest in terms of Section 40(1)(b}.

[89] Since there is no evidence supporting the notion that the jurisdictional facts for unlawful arrest within either the context of Section 40(1)(a), or Section 40(1)(b), the only conclusion is that the arrest was unlawful.

[90] In the light of the above conclusion, the conduct of the Defendants did not pass the requirements of Stage I of the enquiry.

[91] It is therefore unnecessary to proceed to Stage II of the enquiry[24]• I do not therefore consider any constitutional issues or questions. These considerations may possibly be relevant when the question quantum is adjudicated.

[92] The only question that remains is whether the Plaintiffs are entitled to judgment against the second Defendant, that is Warrant Officer Nkuna, and to hold Warrant Officer Nkuna liable jointly and severally with the First Defendant.

[93] Section 55 of the South African Police Service Act no. 68 of 1995, as well as Section 46 (1) of the Criminal Procedure Act, 1977, provides for the non-liability and indemnity of members of the South African Police Services, under certain circumstances, in case of unlawful arrests.

[94] It is in this case impossible to adjudicate this question. Had the Plaintiffs been serious to pray for judgement against the Warrant Officer Nkuna, one would have expected them to have dealt in one way or another with the basis of such liability and particularly provide a clear and unequivocal allegation that would indicate that the indemnities provided for in the two sections, do not apply to Warrant Officer Nkuna. There is absolutely nothing of the nature in the Particulars of Claim, or for that matter perhaps anywhere else in the pleadings. There is a single reference in the heading of the prayers, in which Plaintiffs pray for judgement against First and Second Defendants the one to pay the other to be absolved.

[95] I conclude therefore that judgement cannot be granted against the Second Defendant.

[96] I accordingly make the following order:

a) The arrest of the Plaintiffs, by members of the First Defendant, that took place on the 6 of June 2018, was unlawful.

b) The First Defendant shall compensate the Plaintiffs for any proven damages flowing from the unlawful arrest.

c) The First Defendant shall pay the costs of suit of the Plaintiffs.

G. J. DIAMOND

ACTING JUDGE OF

THE HIGH COURT

APPEARANCES:

HEARD ON:

JUDGMENT DELIVERED ON:

For the Plaintiff:

Instructed by:

For the Defendants:

[1] Par 5.1 of the amended plea.

[2] Lombo v African National Congress [2002) 3 All SA 517 (SCA).

[3] This is how the tetimony was translated by the interpreter.

[4] A Google maps search reveal that Marabastad is located 495 kilometers from Saselemani.

[5] He was vague from where he took notice, or how he took notice.

[6] The legal representative of the Plaintiffs explained in court, that the work "fongkong" is used in everyday language, in the area, to mean counterfeit goods.

[7] 2011 (1) SACR 315 (SCA).

[8] Sekhoto Par 6.

[9] and that includes constitutional considerations.

[10] Paragraphs 45 - 52 of Sekhoto

[11] See the explanation LE ROUX AND OTHERS v DEY (FREEDOM OF EXPRESSION INSTITUTE AND RESTORATIVE JUSTICE CENTRE AS AMICI CURIAE) 2011 (3) SA 274 (CC) Par 85.

[12] Par 35.

[13] Par 38.

[14] Paragraph 57 of Sekhoto.

[15] That is that the arrest was justified because the peace officer arrested a person whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody.

[16] That is that the arrest was justified because the peace officer arrested a person who commits or attempts to commit any offence in his presence.

[17] The triviality of the offence may play a role when the peace officer exercises his discretion whether it would be justified, given all the circumstances to effect an arrest.

[18] Although a plea in this manner will generally be regarded to be vague and embarrassing, I will nonetheless proceed, in favour of the defendant to consider both defences in the light of the evidence.

[19] Paragraphs 333 - 350 LAWSA (Criminal Law , Volume 11 - 3rd Edition).

[20] Paragraphs 357- 361 LAWSA (Criminal Law, Volume 11 - 3rd Edition).

[21] Paragraph 362 LAWSA (Criminal Law, Volume 11 - 3rd Edition).

[22] As per Per Mcewan J and Philips AJ in S v SHABALALA 1982 (2) SA 123 (T), Page 125 A.

[23] That is, if the explanation given by the Plaintiffs is assumed to be not satisfactory for purposes of the section - which is in any event highly doubtful.

[24] Neither do I think that the pleadings would allow such an assessment since the lawfulness of the discretion was not put in dispute in any credible or satisfactory way by the Plaintiffs.