Seetseng v Minister of Police and Another (CIVAPPFB2/18) [2019] ZANWHC 38 (4 July 2019)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO. CIV APP FB2/18

In the matter between:

TSHEPISO CLIFFORD SEETSENG Applicant

and

MINISTER OF POLICE

1st Respondent

THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS

2nd Respondent

GURA J, KGOELE J AND MORWANE AJ

DATE OF HEARING

: 08 FEBRUARY 2019

DATE OF JUDGMENT : 04 JULY 2019

FOR THE APPLICANT :

Adv. T.B MONTSHIWA

FOR THE RESPONDENT : (NOT OPPOSED)

JUDGMENT

GURA J.

[1] The appellant (“the plaintiff”) instituted an action against the respondents for unlawful arrest and detention and malicious prosecution. Both claims were dismissed with costs by the court a quo on 14 December 2017. The appellant is now appealing this judgment and order with leave of the court a quo. The appeal is not opposed by the defendants.

Unlawful arrest and detention.

[2] Under this claim only two witnesses testified on behalf of the respondents. On 7 December 2013 Constable Kgetsane attended to a complaint at the complainant’s house. He found the burglar door broken. The complainant then told him (Kgetsane) that she was raped by people who broke into her house that night and her plasma television was stolen. She further told him that she could identify one of the perpetrators as she usually sees him in Unit 14 where she (complainant) stays and that he (perpetrator) was recently in prison.

[3] Armed with this information, Kgetsane approached a police informer who led them straight to the plaintiff’s house. The police were in the company of the complainant in the criminal case. When they arrived at a certain house, Kgetsane opened the door and the complainant immediately pointed out the plaintiff as the person who had violated her sexually. At that stage, Kgetsane arrested and detained the plaintiff.

[4] The investigating officer, Warrant Officer Mogwasanyane also confirmed that when he interviewed the complainant, she told him that she could point out the person who had raped her.

[5] The plaintiff testified and called three witnesses; his parents and his (plaintiff’s) younger brother. The version of the plaintiff is as follows: On 7 December 2013 in the morning he was arrested by the police at home. Upon their arrival at his residence, the police were greeted by his mother and not himself as testified to by Kgetsane. Thereafter his mother came to inform him that the police were looking for him. He went outside and the police told him they had a few questions for him and took him into their vehicle and eventually took him to Mmabatho Police Station. He stated that the complainant was not with the police when they came to his home and as a result denied that the complainant identified him as the person who had raped her. He was placed in a waiting cell without being informed why he was arrested. A few days later he was booked out by Mogwasanyane and assaulted. He was detained and on 16 January 2014 to May 2014 he was taken to Lichtenburg Correctional Service to finish his sentence for which he had been released on parole on 4 September 2013. At the time of his arrest he was assaulted by the police with batons. As a result of the arrest and detention, he developed high blood pressure for which he still receives medical treatment. On the night of the incident (of rape), he was at home with his parents and was never with the complainant at her house. Thus he denied having committed any offence.

[6] The plaintiff’s three witnesses corroborated his version. They testified that they never saw the complainant at their residence when police were there. According to Mrs. Seetseng, the plaintiff’s mother, she is the one who opened her house door for the police. When they asked to see the plaintiff, she personally called him and he

left with the police. When the plaintiff’s parents went to bed the previous night at about 21H00, they left the plaintiff still watching television at home.

Malicious prosecution.

[7] Only two witnesses, both public prosecutors, testified on behalf of the second defendant. Mr. Tshinyane, the Senior Public Prosecutor of Vryburg gave the following account: On 9 December 2013 he received a docket of CAS 139/12/13 which contained statements on allegations of rape, robbery and housebreaking. He read through the docket and the accused was the plaintiff in this civil case. In the statement of the complainant she alleged that she was raped by one of the two people

who broke into her house and that although she did not know the person who raped her, she could identify him. She described the

person to her neighbour and that is how the name of the plaintiff came up.

[8] In the arrest statement, the arresting officer stated that after getting the description of the suspect he went with the complainant to the plaintiff’s house and on arrival the complainant pointed at the plaintiff as the person who raped her and the plaintiff was arrested. It was on the strength of that information that Tshinyane decided to have the matter placed on the roll for further investigations as he was of the view that there was a prima facie case. In the docket there was also a medical report form known as “J88” confirming forceful penetration of the complainant.

It was his testimony that he acted fairly and having applied his mind to the matter.

[9] The evidence of Mr. Kalakgosi who is the Regional Court Prosecutor is to the effect that the plaintiff appeared in the Regional Court on 20 November 2014. The case was postponed to 27 January 2015 and thereafter to 9 February 2015. On the latter date, the plaintiff refused to continue with the case unless the DNA results were available. Upon receipts of the DNA analysis report from the Forensic Science Laboratory, it excluded the plaintiff in this rape case. Consequently, on 12 February 2015 the case against the plaintiff was withdrawn. Thereafter, when the prosecutor discussed with the complainant why he withdrew the case, the complainant insisted that it was the plaintiff who had raped her. Kalakgosi also testified that he received the DNA results, on/or around 22 August 2014 and same was never made available to the defence until 09 February 2015 when he still had the intention to proceed notwithstanding that the DNA excluded the plaintiff as the donor of the sample analysed.

Grounds of appeal

[10] The following grounds have been raised in support of the appeal:

Unlawful arrest and detention

10.1 The Court erred in ignoring the inconsistencies in the statements of the complainant and the arresting officer which are material to the issue of identity of the plaintiff; this issue of identity is noted too in the following paragraphs thereof.

10.2 The Court erred in ignoring the testimony by the investigating officer, during bail hearing that according to the complainant she saw only one person; though she could hear that there was not only one person.

10.3 The Court further misdirected itself in speculating that the plaintiff’s witnesses “could have been rehearsed” thus ignoring the more probable version of the plaintiff, that the

gate was locked and the complainant was not present at the time of arrest; which was corroborated and never challenged in cross examination.

10.4 Flowing from the above paragraphs, the Court erred in finding that the arresting officer’s suspicion rested on reasonable grounds (thus all the jurisdictional facts were present) and

the power envisaged in Section 40(1)(b) may be invoked.

10.5 The Court in finding that Tshinyane had acted with reasonable and probable cause when setting the law in motion; notwithstanding that he did not/failed to pay attention

to the contents of the docket hence he ignored the contradictions in the statements of the complainant and the

arresting officer which are material to the issue of the identity of the plaintiff.

10.6 The Court erred in accepting Kalakgosi’s “common purpose doctrine” theory to justify his failure to make available the DNA results to the defence on/or about the 22nd August 2014 but made same available almost six months later on 9th February 2015.

10.7 The Court erred in finding that the “theory” in paragraph 10.2 above was based on reasonable and probable causes and does not display any malice.

10.8 The Court ignored the fact that the plaintiff was only accused and he was charged with rape and house robbery; and in relation to the latter, there is nothing that linked the plaintiff

to the crime scene neither with rape except an incorrect identification which was unfounded; thus, the common purpose doctrine cannot apply.

10.9 The Court erred in finding/accepting that the prosecution has not failed; but instead it was terminated in the interest of justice in favour of the plaintiff.

Legal principles

[11] Section 40(1)(b) of the Criminal Procedure Act[1] empowers the police to arrest without a warrant under certain circumstances. It is

trite law that some jurisdictional facts must exist before the power (to arrest without a warrant) may be invoked. See in this regard Duncan v Minister of Law and Order[2] where the following principles were distilled:

“(a) the arrestor must be a peace officer;

(b) the peace officer must entertain a suspicion;

(c) it must be a suspicion that the arrestee committed a Schedule

1 offence (other than escaping) and

(d) that suspicion must rest on reasonable grounds.”

[12] The onus rests on the defendant to justify an arrest without a

warrant. In Hurley Case[3], Rabie CJ stated:

“An arrest constitutes an interference with the liberty of the individual concerned, and it therefore seems fair and just to require that the person who arrested or caused arrest of another person

should bear the onus of proving that his action was justified in law”.

[13] In Naidoo v Minister of Police[4], the Court made the following remarks:

“[40] And, as was explained by Van Heerden AJ in Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818G-H, once the jurisdictional requirements of the section are satisfied, the peace officer may, in the exercise of his discretion, invoke the power to arrest permitted by the law. However, the discretion conferred by s 40(1) of the CPA must be properly exercised, that is, exercised in good faith, rationally and not arbitrarily. If not, reliance on s 40(1) will not avail the peace officer.”

[14] In Gellman v Minister of Safety & Security[5] at page 465, the Court stated:

“[97] To sum up, the approach of a peace officer in determining whether or not to make a warrantless arrest should preferably be as follows:

1. The policeman should consider whether there are reasonable grounds to suspect that the person to be arrested has committed an offence referred to in Schedule 1.

2. In determining whether such reasonable grounds exist, the policeman should analyze the evidence at his disposal critically.

3. While there may be circumstances in which a policeman can form a reasonable suspicion based only on a witness statement, those circumstances will be rare. It would be preferable for a policeman to find corroborative evidence before making an arrest.

4. Whether the policeman himself witnesses events which give rise to a reasonable suspicion that a Schedule 1 offence has been committed, it may be that no corroborative evidence is necessary.

5. After the policeman has determined that there are reasonable grounds for suspecting the commission of a Schedule 1 offence, he must exercise his discretion to determine whether there are circumstances which militate in favour of effecting a warrantless arrest. Usually the risk of the suspect absconding or committing further crimes if the policeman delays in obtaining a warrant, would militate in favour of a warrantless arrest.

6. A policeman should always consider whether the accused’s attendance can be procured through a summons as this is the preferable method of summoning a suspect’s attendance at a trial. If the policeman concludes that there is a risk of flight if a summons is served on the suspect, the policeman should consider whether the ends of justice may be defeated if he approaches a Magistrate or Justice of the Peace to obtain a warrant.

7. In determining whether or not to effect an arrest, the arresting officer should carefully consider his/her standing orders. Where a police officer exercises a discretion in violation of standing orders, that may in itself be an indication that the discretion was not properly exercised and that the warrantless arrest was unlawful.”

[15] In Mabona[6], at page 411-12 it is stated:

“The reasonable man will therefore analyse and assess the quality of the information at his disposal critically, and he will not accept it lightly or without checking where it can be checked. It is only after an examination of this kind that he will allow himself to entertain a suspicion which will justify an arrest. This is not to say that the information at his disposal must be of sufficient high quality and cogency to engender in him a conviction that the suspect is in fact guilty. The section requires suspicion but not certainly. However, the suspicion must be based upon solid grounds. Otherwise, it will be flighty or arbitrary, and not a reasonable suspicion.

The first consideration in weighing the reasonableness of the second defendant’s suspicion is that it is based solely on information

he received from a secret informer. Every reasonable policeman knows that our Courts regard the evidence of informers with caution.

Informers are categorized with accomplices, quasi-accomplices and police traps are witnesses whose evidence must be subjected to close and careful scrutiny before it is accepted at all unless it is corroborated. The reason is plain. This sort of witness has a motive to misrepresent the facts, and he is frequently in a position to give circumstantial detail which may give his false implication of an accused person a misleading ring of truth. See for example the remarks of Holmes JA in S v Malinga and Others 1963 (1) SA 692 (A). The second defendant ought to be aware of the possible danger of an uncritical acceptance of the word of an informer, and indeed, he agreed with the proposition put to him in cross-examination that inaccurate or false information is from time to time given to the police by the informers. If the Courts are cautious about accepting evidence given on oath and subject to cross-examination, all the more reason for the police to be cautious about believing an informer’s unsworn and untested information. Ordinarily, a police arrest is based upon a sworn complaint supported, perhaps, by sworn statements from witnesses. In the case of an informer, however, who insists upon anonymity and whose anonymity is jealously protected by the police, this safeguard is missing. The informer makes no formal statement or complaint. I do not suggest that the police cannot or should not arrest a suspect without a warrant in the absence of sworn statements implicating him. The circumstances of a particular case may justify their doing so. But I am of the view that where no sworn statement is available a reasonable policeman will less readily entertain a suspicion.”

The court a quo’s reasoning.

[16] The Court a quo identified the issues before it and continued: “The plaintiff’s case is that the said arrest was unlawful as the arresting officer’s suspicion was not based on reasonable grounds. This is based on the identity and contradictions in the statements of the complainant and the investigating officer. _

_ _ _ In her statement she states that she described the one who raped her to her neighbours and they told her that the person she is describing looks like Action (the plaintiff).”

“[30] The arresting officer in his statement stated that the complainant told him that if she sees the suspects she can identify them as she used to see the other one at Unit 14 and alleged that the guy has been arrested before. Further that on their arrival at the plaintiff’s home the complainant before they could speak to the plaintiff, pointed him out as the one who raped her. During cross examination by counsel for the plaintiff his version did not change about how the plaintiff was arrested. He stated that what made him to have a reasonable suspicion was that the plaintiff did not respond when he was pointed out and the complainant showed certainty. He was a credible witness and I cannot find his evidence to be improbable. There is consistency in his evidence and that of the complainant in her statement that she could identify the perpetrator if she saw him and that is exactly what she did.”

[17] In relation to the evidence by and for the plaintiff, the presiding Judge stated that none of his witnesses corroborated the version of the plaintiff and that there were inconsistencies about whether or not the plaintiff was awake at the arrival of the police at his (the plaintiff’s) home. Then the Court made this finding:

“ [31] _ _ _ This is an indication that the evidence of the plaintiff and his witnesses could have been rehearsed so as to corroborate each other on the issue of the door being opened by the mother and not the plaintiff. The contradictions are material and that makes their evidence inconsistent and stands to be rejected.

[32] The decision to arrest by Kgetsane cannot be said to have been irrational. He was present when the complainant pointed out the person who raped her. _ _ _”

Analysis of evidence by this Court

[18] Constable Kgetsane is the one who arrested the plaintiff. He was accompanied by two colleagues who are both Constables. The information which they received from the victim of rape (the complainant) was that her house was broken into at night, she was raped by one person and the culprits also stole her plasma television, amongst others. Kgetsane testified that the complainant told them that she can identify the one who had sexually violated her because she usually see him in the streets of Unit 14 Mmabatho, and that he had been arrested before. In her statement to the police about this incident, the complainant stated that she was raped by an unknown man and that it was for the first time she saw him.

[19] The complainant was not called to testify. Her statement to the police contradicts the verbal information which she gave to the police. In my view this is a crucial contradiction which the trial Court failed to give its full attention. Not only the complainant did not testify, in order to throw light on this matter but the two Constables who were with Kgetsane at the complainant’s house and at the plaintiff’s residence were not called by the defendant. The evidence of a single Constable (Kgetsane) had to contend with the evidence of the plaintiff and his three witnesses.

[20] In his statement to the police, Kgetsane said he was told by a police informer that the plaintiff was the only person who had been arrested at Unit 14. Kgetsane regarded the informer as reliable because he stayed at Unit 14, Mmabatho.

[21] The plaintiff’s witnesses corroborated the plaintiff that:

21.1 Their homestead gate was locked when the police arrived;

21.2 The mother to the plaintiff (and not the plaintiff himself) went to unlock the gate for the police;

21.3 None of them saw the complainant who is alleged to have been with the police at the plaintiff’s residence.

This evidence, as I have stated earlier stands against the evidence of a single witness (Kgetsane) on the crucial issue whether the complainant identified the plaintiff at his (plaintiff’s) home. The court a quo stated without elaborating that there were contradictions on the plaintiff’s case. I am unable to find any contradictions which would have justified an adverse finding against the plaintiff. Conversely, this Court finds that on the weight of the evidence, the probabilities favour the plaintiff. It should never be lost sight of the fact that the defendant, on whom the onus rested, failed to call three witnesses (the complainant and the two Constables) to corroborate its version.

[22] The findings by the court a quo that the version of the plaintiff and his witnesses could have been rehearsed is unfortunate. There is nothing in the case record which justifies this finding and in this regard I find myself unable to agree with the court a quo. I am saying this mindful that the findings relating to demeanor and credibility of witnesses is the province of the court a quo.

[23] On a balance of probabilities, the Court finds that the defendant failed to prove that the warrantless arrest by Kgetsane was lawful. There are serious questions about the alleged presence of the complainant at the plaintiff’s home during arrest. No reasonable police officer would have arrested, without a warrant, a suspect where the identity of the suspect was so vague. This Court finds that the arrest of the plaintiff was unlawful.

[24] In Minister of Justice and Constitutional Development and Others v Moleko[7], the Court laid down the requirements of this action:

“Claim for malicious prosecution: requirements

8. In order to succeed (on the merits) with a claim for malicious prosecution, a claimant must allege and prove –

1. That the defendants set the law in motion (instigated or instituted the proceedings);

2. That the defendants acted without reasonable and probable cause;

3. That the defendants acted with ‘malice’ (or animo injuriandi); and that the prosecution has failed.”

The Court went further and stated at paragraph 20:

“[20] Reasonable and probable cause, in the context of a claim for malicious prosecution, means an honest belief founded on reasonable

grounds that the institution for proceedings is justified. The concept therefore involves both a subjective and an objective element

– not only must the defendant have subjectively had an honest belief in the guilt of the plaintiff, but his belief and conduct must have been objectively reasonable, as would have been exercised by a person using ordinary care and prudence.”

[25] In Minister of Police and Another v Du Plessis[8] at paragraph 34 the Court said:

“A prosecutor’s function is not merely to have the matter placed on the roll, to then simply be postponed for further investigation. A prosecutor must pay attention to the contents of his docket. As set out above, a prosecutor must act with objectivity and must protect the public interest. In the present case, that was not done.”

Analysis by Court

[26] It is indeed so that when the prosecutor received the docket, there was a contradiction between two affidavits, the first being the complainant’s and the second by Constable Kgetsane. On behalf of the plaintiff it was submitted before us that since the identity of the suspect was an issue in the criminal case, the prosecutor should not have taken a decision to prosecute the plaintiff. In my view however, the fact that there is a contradiction or contradictions between two or more prospective witnesses’ statements, does not necessarily justify a decision declining to prosecute. That will depend largely upon the nature and importance of contradictions and generally, the facts of each and every individual case. In casu, the prosecutor has stated that he was awaiting the forensic test results of DNA samples taken by the doctor from the complainant’s private parts. In this case the prosecutor cannot be faulted for not declining to prosecute at that early stage. Such an early, hasty decision to withdraw the case may at times lead to a possible failure of justice for instance where the suspects’ DNA deposits are identified in the complainant’s private parts.

[27] Of course in the current case the forensic test results could not link the plaintiff to the crime of rape. When the DNA results were received, the prosecutor still did not withdraw the case against the plaintiff. The prosecutor testified that regardless of the forensic test results, he was of the view that the nature of the information in the statements could not exclude the possibility of a conviction of the plaintiff. Care should always be taken by public prosecutors when DNA test results do not connect the suspect to the crime of rape. There are ways of penetrating a rape victim and yet no DNA trace of the wrong doer is deposited in the victim’s private parts. One should not forget what the prosecutor told the Court in this trial (civil case). His view is that on the day she finally decided to withdraw the case, the complainant was present in court and she still insisted that the person who had raped her was no one else but the plaintiff. The complainant is alleged to have given this information to the prosecutor outside the court. Had the complainant testified, she may have explained the alleged contradiction between her and Kgetsane’s statements to the court. It is common phenomenon for instance for a witness to disallow the contents or part of the contents of a statement made to the police.

[28] In my view therefore, this is not a situation (case) where the prosecutor could be said to have acted without reasonable and probable cause or that he acted animo injuriandi when he decided to prosecute the plaintiff. In the result, the claim for malicious prosecution stands to be dismissed. In my view therefore, the court a quo acted properly in dismissing this claim.

Order.

[29] Consequently;

29.1 The appeal against the dismissal of the claim of malicious prosecution is dismissed with costs;

29.2 The decision of the court a quo to dismiss the claim of malicious prosecution is confirmed;

29.3 The appeal against the dismissal of the claim of unlawful arrest and detention is upheld;

29.4 The decision of the court a quo to dismiss the claim of unlawful arrest and detention with costs, is set aside;

29.5 The arrest and detention of the plaintiff is unlawful;

29.6 The first defendant to pay costs in the court a quo as well as costs consequent upon this appeal.

SAMKELO GURA

JUDGE OF THE HIGH COURT

I agree.

A.M KGOELE

SAFIRA P MORWANE

ACTING JUDGE OF THE HIGH COURT

ATTORNEYS

For the Applicant : T.L SEELETSO ATTORNEYS

For the Respondent : STATE ATTORNEY, MMABATHO

[1] Act 51 of 1977. Section 40(1)(b) provides: 40 Arrest by peace officer without warrant (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;

[1] Act 51 of 1977. Section 40(1)(b) provides:

40 Arrest by peace officer without warrant

(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;

[2] [1986] ZASCA 24; [1986] 2 All SA 241 (A) at page 248

[3] Minster of Law and Order and Others v Hurley and Another. 1986 (3) SA 568 (A) at 589E-F.

[4] 2016(1) SACR 468 SCA

[5] 2008 (1) SACR 446 (W)

[6] Mabona and Another v Minister of Law and Order and Others [1988] 3 All SA 408 (SE).

[7] 2009 (2) SACR 585 (SCA)

[8] 2014 (1) SACR 217 (SCA)