Ngope v Minister of Police and Others (57726/2012) [2021] ZAGPPHC 801 (25 November 2021)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO.: 57726/2012

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED.

25/11/2021

In the matter between:

TSOBANE JACOB NGOPE Plaintiff and THE MINISTER OF POLICE INSPECTOR THULARE INSPECTOR SEANEGO First defendant Second defendant Third defendant

JUDGMENT

van der Westhuizen, J

[1] The plaintiff claims damages from the defendants in respect of his alleged unlawful arrest and detention, and malicious prosecution on a charge of stock theft. The arrest and detention occurred on 29 September 2011. The arrest was without a warrant of arrest. The plaintiff was released on 7 October 2011 when the charges against him were withdrawn. The defendants defended the action. Only the issue of liability is to be adjudicated upon, the parties having agreed to separate the issues of liability and quantum.

[2] In view of the fact that the arrest of the plaintiff was effected without a warrant for arrest, the defendants bore the onus of proof on the balance of probabilities that the arrest and consequent detention was lawful.

[3] It is common cause that the plaintiff was arrested in terms of the provisions of section 40(1)(b) of the Criminal Procedure Act, 51 of 1977 (the CPA), on a charge of a suspicion of stock theft. It is further common cause that the said charge fell within the offences listed in Schedule 1 of the CPA. Furthermore, it is common cause that the said charge fell within the circumstances provided for in section 40(1)(b) of the CPA in terms whereof such arrest could be effected without a warrant of arrest.

[4] Initially the plaintiff’s claim was in respect of only unlawful arrest and detention. During 2017, the plaintiff amended his particulars of claim to include a claim for malicious prosecution. Prior to the hearing of the matter, on the morning of the hearing, the plaintiff withdrew his claim in respect of malicious prosecution. The parties further agreed to separate the issues of liability and quantum. I ruled on the issue of separation and the matter continued before me only on the issue of liability. In that regard, the only issue in dispute appeared to be whether the arresting officer had a reasonable suspicion in respect of the offence having been committed and thus warranting an arrest without a warrant of arrest.

[5] The defendants accepted the onus, and commenced to lead evidence. The witness for the defendants was Warrant Officer Joel Kgomo. He was the arresting officer.

[6] It is to be recorded that the plaintiff cited one Inspector Thulare, who was alleged to have been the arresting officer, and who, together with one Inspector Seanego, detained the plaintiff at the Police Cells. However, in his evidence in chief, the plaintiff testified that he was approached at his house by one Captain Thulare and another police officer, presumably Inspector Seanego. He was requested to go to the police station. At the police station, one Kgomo took his statement and detained him in the cells at the police station until he was taken to court.

[7] This important and glaring discrepancy impacts negatively upon the plaintiff as a witness as will become clear in what follows.

[8] It is trite that a defendant in an action for unlawful arrest and unlawful detention bears the onus of proving the lawfulness of the conduct, in particular where the arrest was effected without a warrant of arrest.[1]

[9] Furthermore, it is trite that if an arrest is unlawful, the subsequent detention is unlawful. However, where the arrest is found to be lawful, the particular circumstances surrounding the subsequent detention would determine whether that detention was lawful.

[10] In terms of the provisions of section 40 of the CPA an arrest may be effected without a warrant where a peace officer reasonably suspects that an offence referred to in Schedule 1 to the CPA, other than the offence of escaping from lawful custody, was committed by the suspect. The reasonability of the suspicion is determined objectively.[2]

[11] In the present instance the crisp issue is whether the arresting officer had a reasonable suspicion that a Schedule 1 offence had been committed by the plaintiff. The offence alleged to have been committed was one of stock theft. Stock theft is an offence listed in Schedule 1. This was common casuse.

[12] In determining the reasonability of the suspicion, regard must objectively be had to the following evidence that was tendered.

[13] On 27 September 2011 a complaint was laid of stock theft of oxen at Rooibok on 26 September 2011. Warrant Officer Kgomo attended at the place where the oxen were allegedly stolen. He spoke with the complainant with whom an alleged suspect was present, one Jacob Pakghati. W/O Kgomo interviewed the said suspect who admitted that the oxen were stolen away from the kraal and taken to a place known as Montlotlo, which is more than 7km from the kraal where they were kept. There the oxen were sold to a white person. The plaintiff was known to the suspect and W/O Kgomo was further informed that the plaintiff knew the white man to whom the oxen were sold. Allegedly the plaintiff was the one who arranged the sale. The suspect further informed W/O Kgomo that the oxen were loaded at the kraal of one Mr Ramatsjobane. On the information received thus far, W/O Kgomo interviewed Mr Ramatsjobane. The latter informed W/O Kgomo that the plaintiff had asked to load the oxen at Mr Ramatsjobane’s kraal. That occurred around 04:00 in the morning. The plaintiff allegedly informed Mr Ramatsjobane that the owner had said that the oxen were to be loaded at Mr Ramatsjobane’s kraal. The owner, one Pakghati, was known to Mr. Ramatsjobane. He was an uncle of the suspect. The oxen that were taken, were loaded on 27 September 2011. Further leads were followed up and the plaintiff was only contactable on 28 September 2011. He was found by Captain Thulare who enquired from the plaintiff where the oxen were. The plaintiff informed him that the oxen were with one Mr Lamprecht, who resided at Cullinan. Captain Thulare was given a telephone number of Mr Lamprecht.

[14] When Captain Thulare arrived at the police station with the plaintiff who went there in his own vehicle, W/O Kgomo was present, as well as the said Mr Lamprecht. The latter confirmed that the oxen were at Cullinan and that he had purchased 25 oxen for R70 700.00. Mr Lamprecht explained that the plaintiff worked as a “runner” for him who had to find cattle to purchase.

[15] During the discussion that ensued at the police station, the plaintiff was present throughout. The suspect indicated that he had received R20 000.00 rand after the purchase of the cattle at Mr Ramatsjobane’s kraal. During the discussion, Mr Lamprecht asked the plaintiff were the balance of the R70 700.00 of the purchase price was. The plaintiff responded by stating that an amount of R30 700.00 was in a plastic bag in the cubbyhole of his vehicle and he fetched it from there. Mr Lamprecht further inquired from the plaintiff why the money was in his vehicle, as the plaintiff was to have paid the whole purchase price over to the owner personally without delay, yet the plaintiff retained the money for a couple of days until 28 September 2011. W/O Kgomo testified that he was present during the whole of the aforesaid discussion and that Mr Lamprecht enquired from the plaintiff where the rest of the money, i.e. R40 000.00, was. The plaintiff offered no explanation.

[16] The plaintiff refused to provide a warning statement and stated that he would talk in court. He was arrested on a suspicion of stock theft and detained at the police station. A notice of his rights in terms of the Constitution was handed to the plaintiff on his arrest. That document was signed by the plaintiff and a police officer in the charge office on 28 September 2011.

[17] The R30 700.00 handed to the police during the aforesaid discussion was recorded in the appropriate register by W/O Kgomo. The amount that the suspect, Jacob Pakghati, had received from the plaintiff, was found on him by the owner of the cattle. The owner had arrested the suspect and handed him over to the police when they attended at his kraal. The arrest by the owner followed on information that the owner of the cattle had earlier received. The amount of R20 300.00 was handed to the police. That amount was also recorded in the relevant register.

[18] During the investigation, W/O Kgomo took statements from the complainant and Mr Ramatsjobane and a warning statement was also taken from the suspect, Jacob Pakghati. Mr Lamprecht wrote his own statement. In my view, the latter’s statement raises more questions than answers. However, that statement is not in issue at this stage.

[19] Both the suspect, Jacob Pakghati, and one Justice, who assisted the suspect to chase the cattle to Mr Ramatsjobane’s kraal, were arrested.

[20] The suspicion that W/O Kgomo formed during his investigations and following on from the aforesaid discussion in the presence of Mr Lamprecht, were stated by W/O Kgomo to be premised upon the following:

(a) The plaintiff never spoke to the owner of the cattle, i.e. never negotiated a sale and purchase price;

(b) The plaintiff arranged a kraal more than 7km away from the kraal where the cattle were originally kept for loading;

(c) The plaintiff knew that the said kraal where the cattle were loaded was situated in the mountains where no one would see the cattle being loaded;

(d) The plaintiff knew that Mr Ramatsjobane lived alone in the mountains and that there would be no witnesses to the loading of the cattle;

(e) The plaintiff had lied to Mr Ramatsjobane when he said that he had the owner’s permission to load the cattle;

(f) The plaintiff knew that what he told Mr. Ramatsjobane was not the truth;

(g) Mr Ramatsjobane knew the owner of the cattle and enquired from the plaintiff where the old man, namely the owner, was;

(h) The plaintiff’s response to Mr Ramatsjobane was that the owner was ill and that he requested that Mr Ramatsjobane grant permission to load the cattle, who then granted permission;

(i) Mr Lamprecht was present when the cattle were loaded and handed an amount of R70 700.00 to the plaintiff with the express instruction that the plaintiff was to hand the money to the owner personally. The money was counted out by Mr Lamprecht;

(j) Instead of taking the money to the owner, the plaintiff shared the money with the suspect, Jacob Pakghati;

(k) The plaintiff retained the balance of the money for three days, until Mr Lamprecht explained at the police station what the purchase price was. Only R30 700.00 was recovered from the plaintiff at the police station. No explanation was provided by the plaintiff where the balance of approximately R40 000.00 was;

(l) W/O Kgomo suspected that the plaintiff was not an honest person, in view of all the information obtained prior to the plaintiff’s arrest and that he was part of the stock theft of the said cattle.

[21] The foregoing explanation provided by W/O Kgomo in respect of his suspicion was not seriously attacked during cross-examination. Rather, irrelevant issues were taken up with him in an attempt to show that W/O Kgomo was to have obtained more information before arresting the plaintiff.

[22] The plaintiff testified in his own defence. However, his evidence went further than what was put to W/O Kgomo during cross-examination. Important and relevant issues were never put to W/O Kgomo upon which he should have had an opportunity to respond thereto. In my view, such additional evidence has little evidentiary value. For instance, the plaintiff’s version in evidence in chief of how the sale came about, is exculpatory in nature. Had that version been provided when a warning statement was requested, a different slant would have been placed on the information already gathered prior to the arrest. The plaintiff chose not to reveal his version, but defiantly stated that he would explain all at court.

[23] The plaintiff clearly add-lipped during his evidence and under cross-examination. He took long to answer straight forward questions and did not respond to others clearly, or at all.

[24] The plaintiff’s evidence was contrary to statements made by various persons who were interviewed and who had made statements. In particular, the plaintiff’s evidence in court differed from those statements of Mr Ramatsjobane and Mr Lamprecht. The plaintiff offered in court an explanation why he still had some of the money in his possession. That explanation was never proffered at the police station.

[25] Furthermore, the plaintiff was not a good witness. He changed his version under cross-examination to suit his position. For example, he said in evidence in chief that he was scared as he had never been in such a situation before, and for that reason he declined to provide a warning statement at the police station. In cross-examination he changed his version. He stated that the police were after him and proffered an explanation. He testified that on a previous occasion he had been accused of stock theft and was arrested and detained at the police station. He was later released by a different police officer than the arresting officer in that matter. The plaintiff’s version that he offered the money to Jacob Pakghati to handover to the owner was never put to W/O Kgomo. Furthermore, it was never put to W/O Kgomo that the said Jacob demanded money for his own use and that he had fought with the plaintiff to obtain the money. He did not proffer any of that when asked by Mr Lamprecht why he did not hand the purchase price to the owner as instructed. The plaintiff further testified under cross-examination that the cattle were taken from the kraal off the owner at around 9:00 on the day. However, the evidence was that the cattle were removed in the early hours (around 4:00) in the morning.

[26] It is important to record that the reasons provided by W/O Kgomo for his suspicion were never disputed, and were not shown to be unreasonable.

[27] The issue of whether a reasonable suspicion of stock theft could have been formed by the arresting officer stands to be determined at the stage when the arrest without warrant was effected. Whatever evidence was provided at the trial is irrelevant. However, even if a court is to consider such evidence at the trial, in my view in the present matter, the plaintiff had not shown that objectively considered, no reasonable suspicion could have been formed. The attempt to provide exculpatory evidence at the trial is without merit.

[28] In view of all of the foregoing, and objectively considered, the uncontested reasons provided by W/O Kgomo point to a reasonable suspicion that the plaintiff was part of the stock theft in respect of which he was arrested.[3]

[29] It follows that the arrest was lawful.

[30] Thus, the detention of the plaintiff, at least until he was brought before a court, was lawful. The issue that requires consideration in the present matter is whether the continued detention after the plaintiff’s first court appearance, and until the charges were withdrawn, was lawful.

[31] In that regard, the plaintiff submits with reference to the dictum in De Klerk v Minister of Police[4] that the entire detention of the plaintiff was unlawful. The aforesaid judgment considered the question of continued detention in terms of a court order in circumstances where the arrest was unlawful. It is clearly distinguishable from the present instance.

[32] Furthermore, the plaintiff never testified that he wished to apply for bail, or to seek a release on warning, after his arrest, or at his first court appearance, and that he was denied that opportunity. Furthermore, it was never put to W/O Kgomo that the plaintiff was denied the opportunity to seek bail or a release on warning after his arrest. The plaintiff was arrested in the presence of his employer, Mr Lamprecht. The issue of bail, or released on warning, was not raised during the discussions at the police station, either by the plaintiff or Mr Lamprecht. No evidence of alleged ‘foresight’ of continued detention after the first court appearance was provided. It was simply never canvassed during this trial. The De Klerk, supra, judgment finds no application in this matter.

[33] It follows that the plaintiff has not shown that his detention after his arrest, and his continued detention until his release, when the charges were withdrawn, was unlawful.

[34] Accordingly, the plaintiff cannot succeed in his action for damages suffered as a result of his arrest and subsequent detention.

I grant the following order:

1. The action is dismissed with costs, including any reserved costs, if any.

C J VAN DER WESTHUIZEN

JUDGE OF THE HIGH COURT

Date of Hearing: 12 & 13 August 2021

On behalf of Plaintiff: J Möller

Instructed by: Makhafola & Verster Inc.

On behalf of Respondent: S M Malatji

Instructed by: State Attorney

Judgment Delivered: 25 November 2021

[1] Brand v Minister of Justice et al 1959(4) SA 712 (A) at 714G-H

[2] Duncan v The Minister of Law and Order 1986(2) SA 805 (A)

[3] Minister of Safety and Security v Vuyolwethu Tyokwana (827/13) [2014] ZASCA 128 (23 September 2014) at [10]-[11]

[4] 2021(4) SA 585 CC