Nkuna v Minister of Police and Another (75612/16) [2021] ZAGPPHC 660 (4 October 2021)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: NO

4 October 2021

CASE NO: 75612/16

In the matter between:

KC NKUNA

PLAINTIFF

and

MINISTER OF POLICE FIRST DEFENDANT

NATIONAL DIRECTOR OF PROSECUTIONS

SECOND DEFENDANT

JUDGMENT

Van der Schyff J

[1] The plaintiff claims damages based on delict against the first defendant, the Minister of Police (the defendant). The plaintiff's cause of action is based on his alleged unlawful arrest, detention and subsequent prosecution by members of the Thaba'Nchu South African Police Services. The plaintiff initially instituted action also against the National Director of Public Prosecution based on malicious prosecution, but abandoned the claim. The parties agreed during a pre-trial meeting that the issues of merits and quantum be separated.

[2] In the particulars of claim the plaintiff pleads that he was arrested without a warrant on 9 September 2014. After leading evidence, the plaintiff applied to amend his particulars of claim to indicate he was arrested on 8 September 2014. This application is dealt with below. The plaintiff pleaded that the charge was never relayed to him at this stage and that none of his rights were explained to him. He was questioned at the Loatle Police Station, and taken to Capitec Bank in Mabopane. He waited outside while the police officers (SAPS) and ClD consulted with bank officials. He was taken home after the incident and warned that the SAPS would return for him the following day. The following day he was arrested again at his place of residence and transported to Sasolburg where he was detained for 24 hours. After being detained in Sasolburg he was transported to Thaba'Nchu SAPS where he spent another 24 hours in a holding cell. On 11 September 2014 he appeared unrepresented in the Thaba'Nchu Magistrate's Court and was sent to Grootvlei Prison for three weeks. During these three weeks he appeared in the Thabanchu Magistrate's Court on three occasions. On each occasion the matter was remanded for further investigation. After three weeks he was granted bail in the amount of R1500.00 and returned home. During December 2014 the matter was again postponed on three occasions. It is pleaded that the matter was never referred to

trial and "thrown out of court due to a lack of evidence". He pleaded that he was wrongfully or maliciously arrested and detained without any justification and without any reasonable suspicion justifying his arrest and detention. He was not afforded

the right to legal representation.

[3] The defendant delivered a plea and later amended their plea by adding a paragraph 4.1 to the existing plea. The plaintiff thereafter amended its particulars of claim but the plea was not again amended. The defendant's special plea that the plaintiffs claim be dismissed because of non-compliance with Act 40 of 2002 became moot after the plaintiff's late filing of the demand in terms of s 3 of the said Act was condoned by the Court. As far as the plea on the merits are concerned, the defendant pleaded that the arrest and detention was lawful, that the plaintiff was arrested in terms of s 40(1)(b) and 50 of the Criminal Procedure Act, 51 of 1977

(CPA), and that there was a prima facie case against the plaintiff that warranted prosecution. The defendant added through amending its plea that the plaintiff was arrested without a warrant on the reasonable grounds that the Plaintiff had committed fraud. The defendant denied that the plaintiff has legal capacity and locus standi to prosecute the action. The defendant denied the events set out in paragraph 2 above and put the plaintiff to the proof thereof. The defendant's plea essentially came down to a plea of bare denial.

[4] At the hearing of the trial the defendant led the evidence of one witness, Detective Constable Phaladi, and the plaintiff testified in support of his case.

[5] Detective Constable Phaladi (Phaladi) testified that she was the investigation officer and stationed in Thaba'Nchu. She received a complaint and consulted with the complainant. The complainant related that he wanted to purchase a motor vehicle. He reacted to an advertisement. He was telephonically informed by the seller to deposit money in a certain bank account. He paid R30 000.00 into the bank account but never received the vehicle. Phaladi obtained a section 205 -subpoena to obtain information from Capitec Bank regarding the holder of the bank account into which the money was deposited. She received a document from Capitec Bank with

details of the account holder. The document was marked Exhibit A. For completeness sake it is necessary to relate that the document form Capitec Bank is a printout of an electronic bank record. It contains a small vague photograph of the person who opened the account. The quality of the photograph is very poor and nothing more than the outline of the person is noticeable. No facial or any other identifiable features can be discerned. The initials "KC", the surname "Nkuna" and an identity number are reflected on the document. The address reflected on the form is "403 CNR END AND ROCKY STREET, MANCHESTER BUILDING, DOORNFONTEIN, JOHANNEBURG."

[6] Phaladi showed the document to her commander for inspection. She approached the Provincial Department tasked with tracking and tracing suspects outside the jurisdiction of the Free State for their assistance. She handed the document received from Capitec Bank to the tracing unit and was subsequently informed by one Warrant Officer Faba that he traced the suspect and arrested him. Warrant Officer Faba is not a member of the SAPS anymore. She was informed that Warrant Officer Faba detained the plaintiff at Sasolburg whereafter he was transported to Thaba'Nchu. Phaladi met the plaintiff for the first time on 10 September 2014 in Thaba'Nchu after he was brought in by the tracing unit and took his warning statement. The plaintiff did not provide her with his identity number

as he said he could not remember it. He did provide her with his date of birth and his residential address. She informed the plaintiff of his rights and he chose not to make a statement. He said that he would give his statement at court. The plaintiff appeared in court on 11 September 2014. His case was remanded for "bail information". Phaladi testified that she had no knowledge about the plaintiff's version that he was allegedly arrested on 9 and 10 September 2014. According to her he was arrested on the 9th.

[7] When cross-examined Phaladi testified that she was not the arresting officer. When asked whether she knew what occurred on 8 and 9 September 2014 she answered in the negative. She confirmed that she interviewed the complainant personally before she obtained the information from Capitec Bank. She confirmed that the document that she received from Capitec Bank formed the basis for the arrest. It was pointed out to her that the address mentioned in the Capitec Bank document differs from the address where the plaintiff was arrested. Other discrepancies on the document received from Capitec Bank regarding the alleged employers and employment address and the cell number contained thereon, were pointed out to Phaladi. It was put to her that the plaintiff will testify that the photo was shown to him by the arresting officer but that it was not him, to which Phaladi answered that she was not there. She denied

that it is evident that the plaintiff is not the person the person in the picture, not however because the person in the picture can be identified, I must add at this point, but because the photo is not clear. She confirmed that the plaintiff's criminal case was eventually withdrawn. When it was put to her that the prosecutor withdrew the charges on the basis of the photograph Phaladi testified that she obtained a clearer photograph during October 2014 and only then was it evident that the person in the photograph does not resemble the plaintiff. She reiterated that the arrest was affected based on the plaintiff's name and identity number that appears on the form. She confirmed that she only investigated the case opened by the complainant and not the issue as to whether the bank account in question was fraudulently opened. Phaladi testified that the plaintiff was arrested to secure his presence in court. She also wanted to prevent him from informing any other people involved in the matter. She denied any knowledge about the police making contact with and arresting the plaintiff on 8 September 2014.

[8] The plaintiff's version was put to Phaladi. The relevant aspects put to Phaladi are that he was approached on 8 September 2014 at his home and asked whether he knows a "Nkuna '. He indicated that it was him. He was shown the document received from Capitec Bank and asked if he could identify the person in the picture. He could not, and stated that it was not him. He was taken to the police station but the conversation with him there occurred in the motor vehicle. Thereafter, he was taken to Capitec Bank but waited outside while the SAPS consulted with people inside. He was returned home and warned that they would come again the following day. On 9 September 2014 the SAPS arrived at his home again. They said he must bring his jersey. They did not indicate where they were going but he accompanied them because he wanted to show it was not him that committed the fraud. He was taken to Sasolburg and detained there for the night. He was not informed why he was detained, and not read his rights. He was not charged. On 10 September 2014 he was transported to Thaba'Nchu. The plaintiff was only read his rights and charged on 10 September 2014 in Thaba'Nchu. His first appearance in court was on 11 September 2014.

[9] Mr. Nkuna's (the plaintiff) evidence corresponded with what was put to Phaladi and need not be repeated here. He added during evidence in chief that he informed the SAPS on 8 September 2014 that he does not have an account at Capitec Bank. The only contentious aspect flowing from his viva voce evidence is that he testified that the SAPS first arrived at his home on 8 September 2014 and that he was taken to Capitec Bank on that day and to Sasolburg on 9 September 2014, while it is stated in the particulars of claim that the SAPS arrived at the plaintiff's home for the first time on 9 September 2014, that they returned the following day and that he was then transported to Sasolburg. He pleaded in the particulars of claim that he was arrested on 9 September 2014 and again on 10 September 2014.

[10] After the plaintiff testified, his counsel requested the particulars of claim to be amended to bring it in line with his evidence. Counsel for the defendant objected. She claimed that the defendant denies that the plaintiff was arrested 'as pleaded' in the plaintiff's amended particulars of claim and that an amendment will cause the defendant to meet a case that was not pleaded. The submission that the defendant denied that the plaintiff was arrested as pleaded (emphasis was added by counsel) is not supported by the pleadings since the plea amounts to a bare denial. The defendant merely pleaded with reference to the applicable paragraphs in the particulars of claim that "[t]he content hereof are denied and the Plaintiff is put to the proof thereof. In amplification hereof see paragraph 4.1 supra.' Paragraph 4.1 was inserted through an amendment to the plea and does not deal with the way in which the arrest was affected. The plea as it read can only be interpreted to mean that the defendant denied the arrest. It cannot be interpreted to constitute a more nuanced denial as to the sequence of events reflected in the relevant paragraphs of the particulars of claim only, to mean that a new case is brought when the date on which the plaintiff was first approach by SAPS changes from 9 to 8 September.

[11] It is common cause that the plaintiff arrived in Thaba'Nchu on 10 September 2014. Phaladi testified that according to her, he was arrested on 9 September 2014. This corresponds with the plaintiffs viva voce evidence that he was taken to Sasolburg and detained on 9 September 2014. Since the parties are ad idem that he was only detained from 9 September 2014, the discrepancy between his evidence and what is stated in the particulars of claim is of no effect. In the absence of any version by the defendant as to the events preceding the plaintiff's arrival in Thaba'Nchu on 10 September 2014 there is no reason not to grant the requested amendment.

[12] The plaintiff did not make out a case that he was arrested on 8 September 2014. He did not relay what happened to let him conclude that he was arrested on that day. Despite the defendant not being in a position to contest it, the plaintiffs evidence that the SAPS drove around with him on 8 September 2014 after him been requested to direct the SAPS to a specific venue, and then locked him in the car at the police station while they showed him the document from Capitec Bank, thereafter taking him to Capitec Bank where he was requested to wait outside and was finally taken home, does not support a finding on reasonable probabilities that he was arrested on 8 September 2014. The plaintiff also did not indicate what made him to conclude that he was arrested on 9 September 2014. He was, however, detained from 9 September 2014. Phalad'is evidence is, also, that he was arrested on 9 September 2014. It is therefore not open to assume that the tracing unit merely traced the plaintiff, and requested him to accompany them to Thaba'Nchu where he was ultimately arrested.

[13] It is common cause that the onus to prove that the plaintiffs arrest was lawful, rests on the defendant. The defendant pleaded that the plaintiff was arrested in terms of s 40(1)(b) of the CPA. Section 40(1)(b) provides that a peace officer may arrest any person without a warrant if he or she reasonably suspects the person of having committed an offence referred to in Schedule 1. The offences listed in Schedule 1 include fraud and theft. It is trite that an arrest or detention is prima facie wrongful and that it is for the defendant to prove the lawfulness thereof. Where an arrest was effected without a warrant the defendant has to show not only that the arresting officer suspected the plaintiff of having an offence but that the suspicion rested upon reasonable grounds.

[14] The primary question to be answered is whether it can be said that sufficient information was available for the arresting officer to reasonably suspect that the plaintiff committed a Schedule 1 offence in circumstances where the arrest was based on the documentation received from Capitec Bank that contained a photograph that was so vague and of such a poor quality that the individual thereon could not properly be discerned, and where the address provided on the document differed from the address where the plaintiff was arrested.

[15] The defendant, on whom the onus rested to prove that the arrest was lawful, was unable to present the arresting officer's evidence. There is no explanation before the court as to what moved the arresting officer to effect the arrest in circumstances where it is proved that the arresting officer, who had the documentation from Capitec Bank in his possession, approached the plaintiff the previous day enquiring from him as to whether he knows a 'Nkuna'. This in itself indicates that the plaintiff was not identifiable as the person in the photograph. The plaintiff's version that he was not informed of any charges against him at this point in time stands uncontested. There is no evidence as to what the discussion with the Capital Bank officials revealed. No evidence was led as to how the tracing unit utilised the information handed over to them by Phaladi in tracing the plaintiff. Whether the plaintiff

was asked to accompany the arresting officer to Capitec Bank on the 8th or the 9th of September 2014 is immaterial. There is no evidence that officers traced the plaintiff to the address where he was found in Pretoria utilising the Johannesburg address reflected in the Capitec document, or traced the plaintiff through his employer reflected on the Capitec document. Phaladi did not testify that the telephone number used by the complainant to communicate with the fraudster corresponded with the cell number on the Capitec Bank document or that the latter corresponded with any cell number of the plaintiff. In the context where the original claim is based on fraud, the mere fact that the bank records reflected the identity number, initials and surname of the accused, without a clear photograph, and with different addresses provided, I am of the view that the defendant failed to prove on a balance of probabilities that the plaintiff's arrest without a warrant on 9 September 2014 was based on a reasonable suspicion or justified. The evidence does not indicate that either the investigating or the arresting officer analysed and assessed the information at their disposal critically. They accepted it on face value without checking what could be checked. Considering the prevalence of fraud and identity theft, a reasonable person in the defendant's position and possessed of the same information would not without more have considered that there are good and sufficient grounds for suspecting that the plaintiff committed fraud. It follows that the plaintiff's arrest and subsequent detention was wrongful.

[16] Phaladi testified that the plaintiff's inability to provide his identity number and his decision not to provide any explanation solidified the suspicion that she fostered since she had regard to the information contained on the Capitec Bank document. It is unassailable that an accused has a constitutional right to remain silent and not to provide any explanation when he or she is arrested. Van der Walt[1] explains that no adverse inference of guilt can be drawn from the accused's pre-trial silence and it cannot be expected of an accused

to assist the state to prove the case against him. In any event, the fact that certain events post-arrest strengthened Phaladi's suspicion is irrelevant since s 40(1)(b) requires the reasonable suspicion to exist at the time when the suspect is arrested.

[17] Based on the Constitutional Court's decision in De Klerk v Minister of Police[2] it was submitted that the defendant is liable for damages suffered for the whole period for which the plaintiff was detained. This is also then why the claim against the second defendant was withdrawn. In the heads of argument counsel for the plaintiff submits that the first defendant is the sine qua non for the plaintiff's incarceration; that there is no new intervening cause because the bail postponements all stem from the unlawful arrest of the plaintiff, that the first postponement was occasioned by the first defendant in an attempt to verify the bail information; that subsequent postponements all had to do with bail which would not have been necessary had the defendant bothered to acquire a better quality photograph.

[18] It needs to be stated that the submission made on behalf of the defendant that the claim stands to be dismissed because the plaintiff failed to prove that he suffered any damages is without merit in light of the fact that the parties agreed that the issue of merits and quantum be separated. I am of the view that the plaintiff was a reliable witness, despite being uncertain in certain instances. Seven years have lapsed since the incident occurred. Aspects of the plaintiff's evidence that can be considered as contradictions were immaterial.

ORDER

In the result, the following order is made:

1. The issues of merits and quantum are separated;

2. The plaintiff's particulars of claim are amended to reflect the following: 'The date reflected in paragraph 6.1 as '9th September

2014' is amended to reflect '8th September 2014';

3. The plaintiff's arrest on 9 September 2014 and his subsequent detention until 29 September 2014 were unlawful and the first defendant is liable for the plaintiff's proven or agreed upon damages.

4. The first defendant is to pay the costs.

E van der Schyff

Judge of the High Court

Delivered: This judgement is handed down electronically by uploading it to the electronic file of this matter on Caselines. As a courtesy gesture, it will be sent to the parties/their legal representatives by email. The date for hand-down is deemed to be 4 October 2021.

Counsel for the plaintiff:

Adv. D. Thumbathi

Instructed by:

Gildenhuys Malatji

Counsel for the defendant:

Adv. M. Botha

Instructed by:

State Attorney, Pretoria

Date of the hearing:

12 August 2021

Date of judgment:

4 October 2021

[1] Van der Walt, T & De la Harpe, SPLR. 'The right to pre-trial silence as part of the right to a free and fair trial: An overview',

AHRLJ (2005) 1, 70 - 88

[2] 2020 (1) SACR 1 (CC).