Radiokana v Minister of Police (1609/2017) [2020] ZANWHC 52 (17 September 2020)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

Case Number: 1609/2017

In the matter between:

M[…] M[…] R[…]

PLAINTIFF

AND

MINISTER OF POLICE

DEFENDANT

JUDGMENT

STANTON, AJ

INTRODUCTION:-

[1] The plaintiff instituted an action against the Minister of Police in his capacity as Head of the South African Police Services for general damages.

[2] In his particulars of claim, the plaintiff alleges that he was wrongfully and/or maliciously arrested on 16 January 2017 and detained without any merits or reasonable suspicion from 16 January 2017 to 20 January 2017 when he was released, without appearing at court.

[3] By prior agreement between the parties, the issue regarding quantum was separated in terms of Rule 33(4) of the Uniform Rules of Court. The matter proceeded before this Court on the question of the defendant’s liability only.

[4] The defendant accepted the duty to begin and proceeded to call three witnesses namely:- Constable Motsegana, Moloko and Mrs R[…], the plaintiff’s wife and complainant in the domestic violence dispute.

[5] After the defendant closed his case, the plaintiff applied for judgment in his favour without leading evidence and without closing his case.

THE PLEADINGS:-

[6] In his particulars of claim, the plaintiff claims a global amount of R400 000,00 for general damages in respect of contumelia, deprivation of freedom, discomfort, suffering, loss of amenities of life, emotional shock and psychological trauma due to his unlawful arrest and detention.

[7] The gist of the defendant’s defence is that the plaintiff’s arrest and detention was lawful as the plaintiff committed an offence relating to assault and contravention of a protection order. According to the defendant’s plea, the arrest was made in terms of Section 40(1)(b) of the Criminal Procedure Act 51 of 1977 (“the CPA”) as there were reasonable grounds which had led the arresting officer to suspect that the plaintiff had committed an offence relating to assault and the violation of a protection order. In amplification, the plea states that the “arrest was necessitated by the plaintiff’s conduct and of putting the life of a human at risk”. In addition, the defendant pleaded that the arrest and subsequent detention was lawful for the following reasons, namely to-

7.1 Maintain law and order;

7.2 Protect property and life together with the right of the complainant and her family;

7.3 Identify and arrest the plaintiff who was reasonably suspected of having committed the offences;

7.4 Investigate the allegations levelled at the plaintiff;

7.5 Act with care and diligence like a reasonable policeman would have done in the circumstances; and

7.6 Respond positively to the concerns of the complainant in an instance where there is a reasonable suspicion that a crime had been committed.

[8] On 21 November 2019 an order was granted that the defendant is permitted to serve and file its plea to the amended particulars of claim within 5 days of the date of the order. The plea was, however, not served or filed.

[9] Prior to presenting oral evidence, Mrs. Magagane, counsel on behalf of the respondent, made an application from the bar for filing of the amendment of the plea. In terms of the proposed amended plea:-

9.1 The plaintiff was arrested on 20 December 2016 for committing an offence of assault with grievous bodily harm against his wife and her grandchildren;

9.2 The plaintiff was granted bail on 29 December 2016 on condition that he relocates to House 8070, 10 Pela;

9.3 On 01 January 2107, the plaintiff’s wife obtained a protection order against the plaintiff authorised in terms of the Domestic Violence Act, Act 116 of 1998 (“the Domestic Violence Act”);

9.4 The plaintiff was aware of the protection order as well as the bail conditions; and

9.5 The arrest was affected by virtue of a warrant of arrest on the basis that he contravened the protection order, which conduct is a statutory offence and lead to his arrest and detention.

[10] The application for the filing and service of the amended plea was opposed, whereafter Mrs Maganane withdrew the application. The trial proceeded on the basis of the undated plea, served and filed on 14 November 2017.

ORAL EVIDENCE:-

[11] Sergeant G Matsogang testified that he attended to Mrs R[…]’s complaint on 16 January 2017 after 24:00. When he arrived at their home, he found the plaintiff asleep in his room. Mrs R[…] informed him of the protection order and showed him the broken door. He stated that he did not observe any evidence of assault that took place on 16 January 2017. He did not arrest the plaintiff immediately as he wanted to confirm whether the protection order was served on the plaintiff. After verifying that the protection order was indeed served on the plaintiff and that the plaintiff was released on bail during 2016, he returned to Mrs R[…]’s home at approximately 18:00 on 16 January 2017 with Constable Moloko who arrested the plaintiff.

According to Sergeant Matsogang, the plaintiff was arrested on the basis of the warrant of arrest, shown to him by Mrs R[…]. When cross-examined on the absence of proof in the occurance book that the arrest was made on the basis of the warrant of arrest,[1] he could not provide any explanation. He could not explain why his written statement was not included in the docket. He could also not explain why the plaintiff was arrested twice on the warrant of arrest that was authorised on 10 January 2017,[2] but he confirmed that the plaintiff was in fact arrested twice on the same docket. He conceded that the contravention is not a Schedule 1 offence. He also states that the Madikwe court only sits on Mondays and Thursdays.

[12] It is common cause that the arrest was made outside court hours and the plaintiff was only taken to court for his first appearance on 20 January 2017, on the fourth court day after the arrest. Sergeant G Matsogang states that the Makwassi court only sits on Mondays and Tursdays. He could not provide confirmation on the date and who released the plaintiff from custody or the absence of proof in the docket that the plaintiff was in fact transferred to court.

[13] Constable Moloko testified that he arrested the plaintiff on 16 January 2017. On his arrival earlier that day, the plaintiff was insulting them and Mrs R[…] appeared scared. According to his evidence, he informed the plaintiff that he is arresting him on the basis of a warrant of arrest for the contravention of the protection order. He stated that he compiled a statement, but he could not provide an explanation on why his statement was not included in the docket. He conceded that his investigation diary does not contain any mention of the plaintiff’s arrest.[3] He confirmed that he has no knowledge of who arranged for the plaintiff’s transfer to court or when it happened. Under cross-examination he insisted that the arrest was made on the basis of a warrant. He could not confirm who made the arrangements for the plaintiff’s transfer to court or who transferred him or whether he was in fact transferred.

[14] Mrs R[…], the plaintiff’s wife, also testified. Her evidence was that she called the South African Police Service on 16 January 2017 as he was threatening her and her childen. According to her, the plaintiff has been harrassing her since 2005. She testified that on the arrival of the police, the plaintiff was not asleep, but he then went to bed and fell asleep. She also testified that the plaintiff had broken the door, but that it was put back on.

SUBMISSIONS BY COUNSEL:-

[15] During the submissions for and against the application for judgment at the close of the defendant’s case, Mr HC du Plessis submitted that the case for the defendant, according to the plea, and despite the evidence tendered, the arrest was made without a warrant of arrest. He argued that the absence of a material

judrisdictional fact, namely that the offence is not a Schedule 1 offence, the defendant failed to prove that the arrest, and subsequent detention was lawful. He added that the Madikwe court is the main seat of the magisterial court and sits daily. As confirmation of this submission, I was referred to the print-out of the magisterial districts. He concluded that the defendant failed to prove that the plaintiff was taken to court, at any stage, for a bail application.

[16] Mrs Magagana argued that the arrest was reasonable, taking into consideration the objective facts of the history of abuse, the existence of the protection order, the breach of the bail conditions and the damage to the door into consideration.

APPLICABLE LAW:-

SECTION 40(1)(b) OF THE CRIMINAL PROCEDURE ACT, ACT 51 OF

1977 (“THE CPA”):-

[17] Section 40(1)(b) of the CPA provides that:-

“A peace officer may without warrant arrest any person whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody;”

[18] Schedule 1 of the CPA does not contain the offences of either assault or contravention of a protection order. The plaintiff was also not arrested for any offence falling within the ambit of Schedule 1.

[19] In the matter of Minister of Safety & Security v Sekhoto &

another[4], the respondents were arrested by police officers without warrants of arrest. The Supreme Court of Appeal confirmed that the jurisdictional

facts for a section 40(1)(b) defence are that the arrestor must be a peace officer; the arrestor must entertain a suspicion; the suspicion must be that the suspect (the arrestee) committed an offence referred to in Schedule 1; and the suspicion must rest on reasonable grounds.The fifth jurisdictional fact required by the lower courts in this case was laid down in the case of Louw v Minister of Safety and Security, where it was stated that even if a crime which is listed in Schedule 1 of Act 51 of 1977 has allegedly been committed, and even if the arresting peace officers believe on reasonable grounds that such a crime has indeed been committed, that in itself does not justify an arrest forthwith. It was held that as an arrest is a drastic invasion of personal liberty, it must still be justifiable according to the demands of the Bill of Rights. The court held that the power to arrest must only be exercised if no less invasive options exist.

DETENTION:-

[20] The plaintiff’s claim must be viewed against the provisions of the Constitution of the Republic of South Africa, 1996 (“the Constitution”), the common law and the provisions of the CPA.

[21] Section 12(1)(a) of the Constitution guarantees the right of security and freedom of the person, which includes the right “not to be deprived of freedom arbitrarily and without just cause”. Section 35(1) provides that anyone who is arrested for allegedly committing an offence has the right, amongst others:

“(d) to be brought before a court as soon as reasonably possible, but not later than –

(i) 48 hours after the arrest; or

(ii) the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day;

(e) at the first court appearance after being arrested, to be charged or to be informed of the reason for the detention to continue, or to be released; and

(f) to be released from detention if the interests of justice permit, subject to reasonable conditions.”

[22] These rights are echoed and somewhat elaborated on in section 50 of the CPA. Section 60 of the CPA deals with the release of detained persons on bail. Section 35(2)(d) of the Constitution furthermore provides that, “Everyone who is detained . . . has the right to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released.”

[23] Froneman J, writing the second judgment in De Klerk v Minister of Police,[5] in his dissent, explained the effect of section 35 of the Constitution in this context as follows:-

“Sub-sections 35(1)(d)–(f) impose constitutional obligations on three different institutions of government: the police services, the National Prosecuting Authority and the judiciary. The police carry the responsibility to ensure a criminal suspect is brought before a court as required by section 35(1)(d). This is an administrative function to be exercised within the broader executive authority of government. The decision to charge a suspect under section 35(1)(e) is one that falls under the authority and competence of the National Prosecuting Authority, an independent institution under the Constitution. The decision to release or detain a suspect falls within the independent judicial authority or competence of the judiciary.”

[24] In Minister of Safety and Security v Sekhoto and Another[6] ,

the following was stated:-

“While it is clearly established that the power to arrest may be exercised only for the purpose of bringing the suspect to justice the arrest is only one step in that process. Once an arrest has been effected the peace officer must bring the arrestee before a court as soon as reasonably possible and at least within 48 hours (depending on court hours). Once that has been done the authority to detain that is inherent in the power to arrest has been exhausted. The authority to detain the suspect further is then within the discretion of the court.

While the purpose of arrest is to bring the suspect to trial the arrestor has a limited role in that process. He or she is not called upon to determine whether the suspect ought to be detained pending a trial. That is the role of the court (or in some cases a senior officer). The purpose of the arrest is no more than to bring the suspect before the court (or the senior officer) so as to enable that role to be performed. It seems to me to follow that the enquiry to be made by the peace officer is not how best to bring the suspect to trial: the enquiry is only whether the case is one in which that decision ought properly to be made by a court (or the senior officer). Whether his decision on that question is rational naturally depends upon the particular facts but it is clear that in cases of serious crime – and those listed in Schedule 1 are serious, not only because the Legislature thought so – a peace officer could seldom be criticized for arresting a suspect for that purpose. On the other hand there will be cases, particularly where the suspected offence is relatively trivial, where the circumstances are such that it would clearly be irrational to arrest. This case does not call for consideration of what those various circumstances might be. It is sufficient to say that the mere nature of the offences of which the respondents were suspected in this case ─ which ordinarily attract sentences of imprisonment and are capable of attracting sentences of imprisonment for 15 years ─ clearly justified their arrest for the purpose of enabling a court to exercise its discretion as to whether they should be detained or released and if so on what conditions, pending their trial.”

ONUS:-

[25] In National Employers’ General Insurance Co Ltd v Jagers[7], Eksteen AJP had the following to say about proving a case in a civil trial:-

“It seems to me, with respect, that in any civil case, as in any criminal case, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the party on whom the onus rests. In a civil case the onus is obviously not as heavy as it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in the present case, and where there are two mutually destructive stories, he can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff’s allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true. If however the probabilities are evenly balanced in the sense that they do not favour the plaintiff’s case any more than they do the defendant’s, the plaintiff can only succeed if the Court nevertheless believes him and is satisfied that his evidence is true and that the defendant’s version is false.”

[26] In African Eagle Life Assurance Co Ltd v Cainer [8], Coetzee J approved and applied the principle in National Employers' General Insurance Association v Gany as follows:-

'Where there are two stories mutually destructive, before the onus is discharged the Court must be satisfied that the story of the litigant upon whom the onus rests is true and the other false. It is not enough to say that the story told by Clarke is not satisfactory in every respect, it must be clear to the Court of first instance that the version of the litigant upon whom the onus rests is the true version . . . .'

[27] It is trite that the defendant bore the onus of proving that the deprivation of liberty was not wrongful. In the matter of Mahlangu and another v Minister of Police,[9]the Supreme Court of Appeal re-affirmed that, in respect of unlawful arrests, that the actio iniuriarum is subject to special features, namely that liability for wrongful arrest is strict. Neither fault nor awareness of the wrongfulness of the arrestor’s conduct is required.

RULE 39(6):-

[28] In terms of Uniform Rule 39(6), at the close of the case for the plaintiff, the defendant may apply for absolution from the instance, in which event the defendant may address the court and the plaintiff or an advocate on his behalf may reply.

[29] The Supreme Court of Appeal, in the matter of Claude Neon Lights (SA) Ltd v Daniel, [10] stated that the test to be applied when absolution from the instance is sought at the close of plaintiff’s case, is not whether the evidence led by plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff.

[30] This proposition of an application for judgment, where the defendant bore the onus and before the plaintiff closing its case or leading evidence, was introduced in the case of Siko vs Zonsa[11] where the court held that it would be a useless (exercise) waste of time to proceed with the matter further.

[31] In the matter of Pather v Minister of Police[12], the following statement was made in respect of an application by the plaintiff for judgment at the close of the defendant’s case:-

“... Plaintiff is entitled to apply for judgment at the close of the Defendant’s case without leading evidence and without closing its case. It was submitted on her behalf that the test to be applied is similar to that of absolution from the instance where a Plaintiff has not discharged its onus. It was further submitted that if a Defendant upon whom the onus of proof rests has failed to lead such evidence in discharge of that onus to the effect that a reasonable man could have not come to the conclusion that it might be accepted, the court would be entitled to give judgment for the Plaintiff.”

[32] The Siko case was confirmed as applicable principle in Hodgkinson v Fourie[13] where the Court stated as follow:-

“At the close of the case of the one side upon whom the onus lies, the question which the judicial officer has to put himself is: “is there evidence on which a reasonable man might find for that side”

[33] The principle enunciated in Siko was also confirmed by this Court in the judgments of Moeng v Minister of Police[14] and Sebogodi v Minister of Police.[15]

ANALYSIS:-

[34] The pleadings are of paramount importance in every civil dispute. They identify the legal and factual issues in dispute that have to be decided, determine what evidence is relevant, and determine which party bears the onus of proof proper, any evidentiary onus and the duty to begin.

[35] In Minister of Safety and Security v Slabbert,[16] the Supreme Court of Appeal held that:

“A party has a duty to allege in the pleadings the material facts upon which it relies. It is impermissible for a plaintiff to plead a particular case and seek to establish a different case at the trial. It is equally not permissible for the trial court to have recourse to issues falling outside the pleadings when deciding a case.”

[36] In casu, the defendant had to establish the lawfulness of the arrest and detention.

[37] On the plea as it stands, the arrest was not affected on the basis of a warrant. Both police officers conceded that contravention of a protection order is not a Schedule 1 offence. The jurisdictional requirement is therefore absent. The evidence of the two police officers which is before Court is cumulatively unsatisfactory and unconvincing that a warrant had in fact been authorised, if considered against the evidence not included in the docket. In addition, the evidence does not support the submissions by Mrs Magagane that the arrest was reasonable in the circumstances and was required to maintain law and order. The plaintiff’s conduct did not in the prevailing circumstances cause imminent harm to the safety, health or wellbeing of the complainant.

[38] In my view, it would be a useless exercise and waste of time to proceed with the matter further when there is no evidence on which this Court might find for the defendant.

[39] In conclusion and to sum up, I find that the arrest of the plaintiff was not justified in terms of sec 40(1) (b) and that it was unlawful. His subsequent detention until his release is accordingly also unlawful.

ORDER:-

[40] Consequently, the following order is made:-

1. Judgment is granted against the defendant at the end of the

defendant’s case without the plaintiff leading evidence and closing its case;

2. The defendant is liable for 100% of the agreed or proven damages of the plaintiff resulting from the plaintiff’s unlawful arrest and detention that occurred on 16 January 2017 until he was released on 20 January 2017;

3. The issue of quantum is postponed sine die to a date that will be arranged with the Registrar; and

4. The defendant is ordered to pay the plaintiff’s costs.

___________

A STANTON

ACTING JUDGE OF THE HIGH COURT

NORTH WEST DIVISION: MAHIKENG

APPEARANCES

DATE OF HEARING

: 26 JUNE 2020

DATE OF JUDGEMENT

: 17 SEPTEMBER 2020

COUNSEL FOR PLAINTIFF

: ADV HC DU PLESSIS

COUNSEL FOR DEFENDANT : ADV MAGAGANE

ATTORNEYS:-

FOR THE PLAINTIFF : LABUSCHAGNE ATTORNEYS

19 Constantia Drive

Riviera Park

MAHIKENG

FOR THE DEFENDANT : STATE ATTORNEY

First Floor

Mega City

MMABATHO

[1] PAGE 51 INDEX – NOTICES.

[2] PAGE 120 DEFENDANT’S DISCOVERED DOCUMENTS.

[3] PAGE 75 DEFENDANT’S DISCOVERED DOCUMENTS.

[4] [2010] JOL 26465 (SCA); SEE ALSO DUNCAN V MINISTER OF LAW AND ORDER 1986 (2) SA 805 (A).

[5] [2015] JOL 45492 [CC] AT PARAGRAPH 130.

[6] [2011] 2 ALL SA 157 (SCA) AT PARAGRAPHS 43 AND 44.

[7] 1984 (4) SA 437 (E) AT 440D-G.

[8] 1980 (2) SA 234 (W) AT 237D-H.

[9] [2020] 2 ALL SA 655 (SCA).

[10] [1976] 4 ALL SA 387 (A). SEE ALSO GASCOYNE V. PAUL AND HUNTER, 1917. T.P.D. 170 AT P. 173; RUTO FLOUR MILLS (PTY.) LTD. V. ADELSON (2), 1958 (4) S.A. 307 (T).

[10] [1976] 4 ALL SA 387 (A). SEE ALSO GASCOYNE V. PAUL AND HUNTER, 1917.

T.P.D. 170 AT P. 173; RUTO FLOUR MILLS (PTY.) LTD. V. ADELSON (2), 1958 (4)

S.A. 307 (T).

[11] 1908 (T) 1013.

[12] (14512/13) [2016] ZAGPPHC 215 (31 MARCH 2016) AT PARA 31.1-31.3.

[13] 1930 (TPD) 740 AT 743.

[14] CIVAPP3/2016) [2016] ZANWHC 49 (30 JUNE 2016).

[15](1201/2016 ZANWHC (27 OCTOBER 2017).

[16] [2009] JOL 24658 SCA AT PARAGRAPH [11].