Swartz v Minister of Police and Another (24128/2017) [2019] ZAGPJHC 193 (18 June 2019)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 24128/2017

In the matter between: SWARTZ, ELROY BYRONE Plaintiff and THE MINISTER OF POLICE First Defendant NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Second Defendant

JUDGMENT

MATOJANE J

Introduction

[1] It is common cause that on 29 July 2016, the plaintiff was arrested for armed robbery. He was detained at the Sophia Town Police Station together with his co-accused. They appeared in the Sophia Town Regional Court on Monday, 1 August 2016, for their first appearance. The case was transferred to the Johannesburg Regional Court where they appeared on 11 August 2016. The case was postponed to 15 August 2016 for the bail application. Bail was refused, and the plaintiff was remanded in custody until the charges were withdrawn on 15 September 2016.

[2] Arising from these facts, the plaintiff instituted a damages claim against the first and second respondents, alleging that he was unlawfully arrested and after that detained arbitrarily and without just cause at the Sophia Town Police Station. The plaintiff alleges that after his first court appearance on 1 August 2016, he was further wrongfully and unlawfully detained at the instance or due to the action of the employees of the second defendant, as they failed to withdraw or stop the prosecution of the plaintiff when they realised that there was no evidence linking him to the alleged crime.

[3] In their plea, the defendants admit the arrest on 29 July 2016, but allege that the arrest was lawful by virtue of the provisions of section 40(1)(b)[1] of the Criminal Procedure Act 51 of 1977 (the CPA), in that the arresting officer, Sergeant Munyai, had a reasonable suspicion that the plaintiff committed the offence of armed robbery.

[4] The duration of the detention is common course. So is the fact that the plaintiff was arrested without a warrant on a charge of armed robbery. His evidence concerning the conditions under which he was kept at the police station and in prison was not disputed.

[5] The plaintiff testified that he was 27 years at the time of the arrest. On the night of the alleged armed robbery, his neighbour, Ms Yvette Willet, asked him to look after her flat and her two daughters while she went out to gamble. His friends, ‘Brock’ and ‘Shanny’ (a reference to the complainant, Mr Rushaan Eugene Dada) arrived at the flat and asked if they could smoke their drugs in the flat. The plaintiff agreed, and they all took the drugs. Brock had sold his son’s phone to Shanny, and he informed the plaintiff that he was planning to take it back from Shanny by force.

[6] Brock and Shanny argued and strangled each other, and Brock took the phone. Shanny fled to the bathroom and broke the bathroom window. He started screaming, saying, “Help, he wants to kill me!” Another male, Randall, also known as ‘R’, arrived at the flat and started hitting Shanny with a claw hammer. The plaintiff states that he was standing with the children. Shanny fell to the floor, and Brock and Randall searched him and took R800 cash from him. They then left. The owner of the flat, Ms Willet,

returned at about 4:00 am and took Shanny to the police station to open a case.

Unlawful arrest

[7] The first issue the Court is called upon to decide is whether the plaintiff’s arrest is unlawful simply because it was effected without a warrant; secondly if not, whether Sergeant Munyai formed a reasonable suspicion that the plaintiff had committed a Schedule 1 offence of robbery, it being not in dispute that Sergeant Munyai was a peace officer for purposes of s 40(1) of the CPA.

[8] The test to be applied to whether a suspicion is reasonable is an objective one. In Mabona v Minister of Law and Order and Others[2] Jones J set out the test as follows:

‘Would a reasonable man in the second defendant’s position and possessed of the same information have considered that there were good and sufficient grounds for suspecting that the plaintiffs were guilty of conspiracy to commit robbery or possession of stolen property knowing it to have been stolen? It seems to me that in evaluating his information, a reasonable man would bear in mind that the section authorises drastic police action. It authorises an arrest on the strength of suspicion and without the need to swear out a warrant, i.e. something which otherwise would be an invasion of private rights and personal liberty. 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 it 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 sufficiently high quality and cogency to engender in him a conviction that the suspect is guilty. The section requires suspicion but not a certainty. However, the suspicion must be based upon solid grounds. Otherwise, it will be flighty or arbitrary and not reasonable suspicion.’

[9] In this case, the investigating officer, Sergeant Munyai, testified that on 12 July 2016 he was allocated the case docket relating to this matter. The docket contained the complainant’s statement and the J88 form indicating the injuries sustained by the complainant. He interviewed the complainant, who informed him that the only witness to the incident was Ms Willet, who was not willing to cooperate with the police. Sergeant Munyai stated that he had difficulty in making contact with Ms Willet. He left her several messages and even visited her flat to try and get a hold of her. He was under the impression that she was scared to give a statement to the police.

[10] Sergeant Munyai managed to trace the two suspects that were known to the complainant, ‘Brock’ and ‘R’. He testified that he traced the plaintiff through a police informer. At the police station, the complainant identified the plaintiff as the one who had kicked him all over his body while he was being robbed. In these circumstances, it was reasonable for Sergeant Munyai to form a reasonable suspicion that the plaintiff was involved in the robbery. The jurisdictional requirements of an arrest

without a warrant in terms of s 40(1)(b) are satisfied, and Sergeant Munyai had exercised his discretion and arrested the plaintiff as he was empowered to do.

[11] The defendant has accordingly discharged the onus that rests on them to justify the plaintiff’s arrest and subsequent detention.

The subsequent detention

[12] I turn to consider the second issue being the detention of the plaintiff after him having been brought to court within 48 hours. The second witness called by the state was Mr Welcome Madela, a public prosecutor at the NPA. In 2016, Mr Madela had been working as a control prosecutor, where he was responsible for studying the case dockets and determining whether or not to institute criminal proceedings. The plaintiff’s matter came before him, and he confirmed that he decided to prosecute the plaintiff and his co-accused on the charge of robbery with aggravating circumstances, a Schedule 6 offence. Mr Madela stated that, based on the evidence contained in the docket at the time that it came before him, it was his view there was a prima facie case against the plaintiff.

[13] In this assessment, Mr Madela had regard to the complainant’s statements, which contained a version that corresponded with the J88 Report. He also had regard to the investigating officer’s statement and the fact that the complainant identified the plaintiff as one of the perpetrators. Mr Madela stated that he had applied his mind fully to the matter in deciding to prosecute, and he stood by that decision in the light of the facts that he had before him at the time.

[14] He testified that he did not deal with the matter after he made his initial decision to proceed with the prosecution. It was a different prosecutor who decided to withdraw the charges against the plaintiff. He could not provide information as to the reasons why the charges were withdrawn.

[15] A person who has not been released from custody is entitled to be released on bail at any stage preceding his or her conviction for such offence if the court is satisfied that the interests of justice so permit.[3] The Constitution[4] gives every arrested person the right to be released from detention if the interests of justice so permit, subject to reasonable

conditions.

[16] Where an accused is charged with an offence referred to in Schedule 6 of the CPA, the court must order that the accused be detained in custody until he or she is dealt with according to law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that exceptional circumstances exist which in the interests of justice permit his or her release.

[17] The plaintiff, who was represented, brought a bail application after his first appearance in court. The application was opposed by the state. One of the grounds of opposition was that the plaintiff was a threat to the community. The application was refused by the magistrate. The respondent remained in custody until his release on 15 September 2016 after the charges had been withdrawn against him.

[18] In Minister of Police and Constitutional Development v Moleko Van Heerden JA had this to say:

‘In order to succeed with a claim for malicious prosecution, a claimant must allege and prove –

(a) that the defendants set the law in motion (investigated or instituted the proceedings);

(b) that the defendants acted without reasonable and probable cause;

(c) that the defendants acted with ‘malice’ (or animo injuriandi); and

(d) that the prosecution failed.’

[19] In the light of the principles enunciated above the decision by the control prosecutor to institute the proceedings against the plaintiff was not malicious and unlawful under the circumstances.

Unlawful detention

[20] It is not in dispute that on 29 August 2016 Ms Yvette Willet deposed to an affidavit stating that, on 11 July 2016 at about 02:30 in the morning, the complainant had entered her flat followed by a man known as ‘Brock’. An argument broke out between them. She heard Brock demand that the complainant give him his cellphone and that he would not go home without it. Ms Willet ran to a neighbour for help. When she came back, she found the complainant on his way home. There were other males outside her flat,

and her window was broken. She stated that she did not see anyone robbing the complainant.

[21] Counsel for the plaintiff submitted that the failure to withdraw the charges once the statement by Ms Willet came to the attention of the prosecutor on 31 August 2016 was malicious and unlawful. He argued that the detention of the plaintiff became unlawful after the prosecutor received the statement of Ms Willet, that is, for the period between 31 August 2016 and 15 September 2016, the date upon which when charges were withdrawn as the prosecution no longer had a prima facie case against the plaintiff.

[22] The only question which remains is whether the prosecutor in the service of the second respondent acted in a manner which constitutes actionable liability constituting further wrongful detention.

[23] Section 6 of the CPA provides:

‘Power to withdraw a charge or stop prosecution.- An attorney-general or any person conducting a prosecution at the instance of the State or any body or person conducting a prosecution

under section 8, may -

(a) before an accused pleads to a charge, withdraw that charge, in which event the accused shall not be entitled to a verdict of acquittal in respect of that charge;

(b) at any time after an accused has pleaded, but before conviction, stop the prosecution in respect of that charge, in which event the court trying the accused shall acquit the accused in respect of that charge: Provided that where a prosecution is conducted by a person other than an attorney-general or a body or person referred to in section 8, the prosecution shall not be stopped unless the attorney-general or any person authorized thereto by the attorney-general, whether in general or in any particular case, has

consented thereto.’

[24] The National Director of Public Prosecutions, acting in terms of section 21 of the National Prosecuting Authority Act 32 of 1998, has issued a Policy Manual containing a Prosecution Policy and Policy Directives. The purpose of the policy is to set out how the NPA and individual prosecutors should exercise their discretion to review a prosecution or to discontinue proceedings by withdrawing charges or stopping a prosecution.

[25] Paragraph 1 of Part 5 of the Policy states that once enrolled, cases may only be withdrawn on compelling grounds ‘, e.g. if it appears after a thorough police investigation that there is no longer any reasonable prospect of a successful prosecution.’

[26] The prosecutor had before him a statement by the complainant, which stated that on 11 July 2016, at about 02:30 AM, while on his way home, he saw two men following him. He heard one of them saying ‘Kom last ons die een roof’. The complainant ran towards the flat of Ms Yvette Willet, who was known to him. She opened the door for him and locked it behind him. Four males entered the flat; amongst them were two males he could identify as ‘Brock’ and ‘R’. One man attacked him with a knife; another attacked him with a silver hammer. They took all his belongings, which included two cellphones and R800 in cash.

[27] The prosecutor also had the J88 form, which confirmed that the complainant was injured during the alleged robbery. Ms Willet, in her statement, said that she did not see anyone robbing the complainant. It must be remembered that she stated that she ran to the neighbours for help.

[28] In my view, there were no compelling grounds for the prosecutor to exercise his discretion and withdraw the charges on 31 August 2016, as the statement by Willet did not necessarily exonerate the plaintiff. There was still a prima facie case against the plaintiff, as the court can convict on the evidence of a single witness, provided that evidence is clear and satisfactory in all material respects.

[29] In my view, the continued detention of the plaintiff under the circumstances was not malicious and unlawful. As a result, the plaintiff’s claim cannot succeed.

[30] The action is dismissed with costs.

_____________________________

K E MATOJANE

JUDGE OF THE HIGH COURT

GAUTENG LOCAL DIVISION, JOHANNESBURG

Date of hearing: 5-6 May 2019

Date of judgment: 18 June 2019

Appearances:

Counsel for the Plaintiff: Adv. S Dlali

Instructing Attorneys: Mashishi Attorneys

Counsel for the Defendant: Adv. FF Opperman

Instructing Attorneys: State Attorney

[1] 40 Arrest by peace officer without warrant (1) A peace officer may without warrant arrest any person- (a) … (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] 40 Arrest by peace officer without warrant

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

(a) …

(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] 1988 (2) SA 654 (SE) at 658E-H.

[3] Section 60 of the CPA.

[4] Section 35(1)(f) of the Constitution.