Mtsweni v Minister of Police (23992/16) [2020] ZAGPPHC 282 (26 June 2020)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 23992/16

26/6/2020

In the matter between:

STEPHEN MAHLO MTSWENI

PLAINTIFF

and

THE MINISTER OF POLICE

DEFENDANT

JUDGMENT

MOGOTSI AJ

Summary: Arrest without a warrant - Criminal Procedure Act 51 of 1977, section 40 (1) (b) - legality - assault with intent to do grievous bodily harm, pointing of a firearm, and kidnapping - pointed - arrest justifiable - claim dismissed.

[1] The plaintiff here in is Steven Mahlo Mtsweni an adult male general labourer residing in Bonkhorspruit, Gauteng Province.

[2] In casu he sues the Minister of Police as a result of an incident which occurred on 13 May 2014 when members of the South African Police Service ("SAPS") arrested him without a warrant.

[3] He alleges that the said members of the SAPS when they apprehended him, did not have a reasonable suspicion that he committed a schedule 1 offence, he was refused legal representation, contact with family

members, and his rights were not explained. He further alleges that was detained without a warrant of arrest; he was not afforded an opportunity to provide any explanation for his wrongdoings or the police failed to take cognizance of his explanation. Finally, he alleges that he could have been brought to court through other less invasive means.

[4] The plaintiff alleges that the conduct of the defendant caused him psychological injuries, emotional shock and trauma.

[5] The plaintiff further alleges that his arrest was wrongful and unlawful and he suffered impairment of his person, dignity and reputation.

[6] The defendant denies that the arrest and detention was unlawful. The defendant states that the plaintiff was lawfully arrested by members of the SAPS by virtue of section 40 (1) (b) of the Criminal Procedure

Act 51 of 1977 ("the Act") because he was facing offences listed in schedule 1 of the Act, viz, kidnapping and assault where a serious injury has been inflicted.

[7] At the commencement of the trial the parties agreed that the defendant had the right to begin, as the burden of proof rests on the defendant to proof that the arrest was lawful.

[8] The first witness called by the defendant was Constable Michael Thokozani Ngoma ("Ngoma") who avers that he is the investigating officer of the matter in respect of which the plaintiff was apprehended. The charges in this matter are assault with intent to do grievous bodily harm, kidnapping, and pointing a firearm. The complainants are Mr Mpanda and his uncle, who were assaulted severely and kidnapped by the plaintiff and others. He, on numerous occasions, traced the plaintiff in order to effect an arrest but to no avail.

[9] Ngoma testified that on 13 May 2014 he was called by the complainants who alerted him that the plaintiff was at his place of residence. He together with his colleague, Constable Charlie Ramela Mokoena

proceeded to the given address around 18H00. They found the plaintiff at his place of abode. He verbally explained to him his rights to legal representation and was apprehended. They proceeded to Bronkhorspruit Police Station. The plaintiff was charged and issued

with written a notice of rights and he signed same. He was afforded an opportunity to call his legal representative who subsequently came to the police station. The plaintiff was released on bail at the instance of the public prosecutor, who acted in consultation with him, within one hour after his apprehension.

[10] Both complainants received medical treatment. He referred the court to J88 forms completed by Dr L P Ndlovu who examined the complainants. Samkelo Nyandayenkosi Mpanza was examined on 15 April 2014. The doctor noted multiple abrasions and bruises on both arms, wrist, hands and buttocks. His wrist moved with difficulty and he was in pain. At posterior tosso there were bruises (sticklike). Both hands looked like they were handcuffed, and appeared swollen. The complainant, Nsindiso Hamilton Mpanza had chest pains, left parietal tenderness, and the left posterior elbow was greenish. The right shoulder looked like it was dislocated. He was sent for x-rays in order to exclude dislocation since he was previously injured on the same shoulder.

[11] Constable Charlie Ramela Mokoena testified to the effect that he was also present when the plaintiff was apprehended. His rights to have legal representative were explained to him verbally by his colleague. He was taken to Brokhorspuit Police Station. The plaintiff was issued with a notice of rights and he signed same. He was afforded an opportunity to call his legal representative who later came and arranged for his release on bail. The public prosecutor in consultation with the investigating officer decided that he be admitted to bail. He was subsequently released on bail.

[12] At the close of the defendant's case, counsel for the plaintiff, applied for the dismissal of the defendant's case. He submitted that the less intrusive method should have been used to secure the appearance of the plaintiff in court based on the following reasons: the complainant and the plaintiff were known to each other prior to his apprehension, the place of abode of the plaintiff was known, he was a school teacher, was not a flight risk, a period of the month, after the incident, lapsed prior to his apprehension and during the period he did not intimidate and/or interfere with witnesses. He opined that the defendant failed to prove the lawfulness of the arrest.

[13] Counsel for the defendant submitted that the plaintiff closed its case without leading any evidence. It was only during argument that they raise the issue of discretion. The plaintiff in his plea and further amended particulars did not raise the issue of discretion and in law is precluded from raising a new case without producing evidence in support thereof. He further opined that the plaintiff did not present evidence indicating that the arresting officer failed to exercise his discretion. Neither did he call witnesses in this regard. He submits that the arrest was lawful and in accordance with

the laws of the Republic of South Africa.

[14] The Act authorises a police officer to arrest a suspect where there is a reasonable suspicion that he/she committed an offence referred to in Schedule 1 of the Act and it provides as follows:

"(1) A peace officer may without warrant arrest any person-

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

[15] The offences of kidnapping and assault where serious bodily injuries have been inflicted are listed in Schedule 1 of the Act.

[16] Having satisfied oneself that the arrest took place by virtue of the provisions of the Act the next question is whether or not the jurisdictional factors have been satisfied and if so whether or not the arresting officer exercised his discretion reasonably and rationally.

[17] In DUNCAN v MINISTER OF LAW AND ORDER[1] the court held as follows:

" The so-called jurisdictional facts which must exist before the power conferred by s 40

(1) (b) of the present Act may be invoked, are as follows:

(1) The arrestor must be a peace officer.

(2) He must entertain a suspicion.

(3) It must be a suspicion that the arrestee committed an offence referred to in Schedule 1 to the Act (other than one particular offence).

(4) That suspicion must rest on reasonable grounds.

If the jurisdictional requirements are satisfied, the peace officer may invoke the power conferred by the subsection, i.e., he may arrest the suspect. In other words, he then has a discretion as to whether or not to exercise that power ."

[18] The court in the matter of DUNCAN supra further stated as follows:

"The words "reasonable suspicion" ins 40 may tend to indicate some subjective test to be applied; however, that is not so; the test as to whether "reasonable suspicion" could have existed and did exist, is to be determined by an objective standard, namely that of the reasonable man with the knowledge and experience of a peace officer based upon the facts and circumstances then known to the arresting peace officer'.

[19] The undisputed evidence in casu is as follows:

19.1 Both Constable Ngoma and Constable Mokoena are police officials

stationed at Bronkhorspruit Police Station.

19.2 There was a pending case of kidnapping, assault where a serious

injury had been inflicted and pointing of a firearm against the plaintiff.

19.3 Both complainants consulted with the medical practitioner who noted

serious injuries on their persons.

19.4 He was arrested a month after the charges were laid. The investigating officer could not affect arrest on him within that period because he was untraceable.

19.5 Both police officers were called to the scene of the arrest by the

complainants upon seeing the plaintiff at his place of abode and they pointed him out to them.

19.6 Upon his apprehension his rights to legal representation in particular was explained.

19.7 At the police station the plaintiff was issued with a notice of

rights and he signed same. He was interviewed by the investigating officer Constable Michael Ngoma and he signed a statement of

interview after indicating that he will make a statement in court.

19.8 He was afforded an opportunity to call his legal representative the latter came and facilitated his release on bail within an hour after his apprehension.

[20] The evidence of the two constables who testified for the defendant stands and is accepted as the truth. See PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS v SOUTH AFRICAN FOOTBALL UNION AND OTHERS[2].

[21] In my view, a reasonable police officer with the same knowledge and experience of Constable Michael Ngoma, faced with the same facts and circumstances of this matter would have not acted differently. In the premises, I am persuaded that the arrest of the plaintiff was lawful.

[22] In the result the following order is made:

22.1 The plaintiffs claim is dismissed.

22.2 The plaintiff is ordered to pay the costs of the defendant including costs of counsel for 29 January 2020 and 10 June 2020.

J MOGOTSI

ACTING JUDGE OF THE HIGH COURT

[1] 1986 (2) SA in 805 (a) at 818 F-H

[2] [1999] ZACC 11, 2001 (1) CC