T v Minister of Police and Others (75903/2013) [2017] ZAGPPHC 585 (12 September 2017)

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

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 75903/2013

DATE: 13/09/2017

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

In the matter between

T. K. S.

Plaintiff

and

MINISTER OF POLICE First

Defendant

WARRANT OFFICER N.J MAPHUTHA

Second Defendant

WARRANT OFFICER M.L MAFA

Third Defendant

JUDGMENT

MADIMA, AJ

[1] The plaintiff was a fifteen years old learner in 2011. He lived with his mother ("Es­ ther") in E. [...], P., M. E., Pretoria. Their home doubled as a creche. This is an early learning facility owned and overseen by the plaintiff's mother.

[2] On 25 July 2011, E. left home at 06:00. She was to attendd training course for creche owners. An assistant had been secured to take care of the children who at­ tended E.'s creche. The plaintiff was to leave for school as soon as the assistant arrived. The assistant never arrived. The plaintiff could therefore not attend classes that day as he would not leave the children on their own. It is not clear what happened between 06:00 and 16:00, save that one of the children ("C"), then aged five years old, and attended creche on the day, complained to her mother that she had been sexually assaulted by the plaintiff.

[3] Late in the afternoon of 25 July 2011, E. received a call from the plaintiff and also from C's mother informing her that C's mother wished to see both of them. The plaintiff and E. presented themselves at C's mother house. C's mother informed both that C had told her that the plaintiff had put Vaseline and his saliva on her private parts and injured her private parts with his private parts. This was a direct translaiton from the Sepedi language to English. The plaintiff denied having assaulted C.

[4] C was taken to a Crisis Centre for examination. The J88 recorded that there were linear tears on the genital which were consistent with blunt trauma.

Investigations by the Police

[5] The police docket records that the matter was reported on 25 July 2011 at the Mamelodi East Police Station. The case was assigned to the second defendant ("Ma­ phutha"). Maphutha visited the plaintiffs home on 26 July 2011. The

plaintiff was not home. He also visited C's home and interviewed both C and her mother. C confirmed that the plaintiff had

sexually assaulted her.

[6] On 27 July 2011 Maphutha formally charged the plaintiff with rape. The plaintiff was taken to the Crisis Centre for the drawing of his blood as is the procedure. He made bail and was released on 4 August 2011.

[7] Months later the DNA results of the plaintiff were found to be negative. This meant that the plaintiff could not be linked to the crime. On 25 January 2012 the case against the plaintiff was withdrawn.

Issue in dispute

[8] The plaintiff is before me on a single issue on the merits. Was his arrest and de­ tention lawful? Looked another way, did the police officer habour a reasonable suspi­ cion at the time he arrested the plaintiff?

Information in Maphutha's possession when he arrested the plaintiff

[9] Maphutha's evidence was that he arrested the plaintiff on the strength of (a) the statement of C's mother, (b) confirmation by C that she had been assaulted by the plaintiff and (c) the J88 report.

[10] C's mother's statement mirrors that of C. The plaintiff applied Vaseline and sa­ liva to her private parts. He then proceeded to injure her private parts with his private parts. The J88 report is clear. It states that there were linear tears consistent with blunt trauma. What more can be required of the police in the circumstances? The plaintiff was the only "adult" in charge of the five year olds at the creche on the day in question. There was no other evidence led that accounted for the injuries of C.

[11] Much is made of the inconsistency in Maphutha's evidence regarding whether it was C's mother or sister who picked C up from the creche on the day in question. The mother's statement is also attacked for stating that C went to urinate and came back complaining of pains between her legs. The mother's statement had been that she was bathing C when C complained of the pain in her private parts. Nothing turns on any of the above. The fact is that C complained that she was assaulted by the plaintiff.

[12] Maphutha is also criticized for not interviewing the other five year olds who at­ tend creche with C. Maphutha rightly responded that it was not necessary to talk to any of the other children. He did not want to extend the trauma to them, and importantly he could also not do so in the absence of their guardians. Again I find the criticism without merit. There is nothing to be gained from interviewing these other five year olds. Indeed there is a possibility that they could be traumatized by the experience and knowledge that one of them had been assaulted.

[13] The plaintiff's legal representative also laments the fact that Dr Lukhozi was not called by the defendant to explain the content of his or her report. The contents of the J88 are clear enough. There is nothing complicated with its contents. The J88 records the existence of torn scar tissue- and was consistent with blunt trauma.

[14] The question for me is whether a reasonable police officer in the position of Maphutha would have acted in the manner he did. The answer must be a resounding, yes. None of the criticism leveled against him and the third defendant regarding their evidence goes to the core of the reasonableness or otherwise of the action of Maphutha when he arrested the plaintiff. With the statement from the mother of the victim and the J88, there can be no other conclusion other than that Maphutha haboured a reasonable suspicion that the plaintiff did in fact sexually assault C.

[15] Members of the South African Police Service are confronted with these situa­ tions on a daily basis. They need to act, and act in a way that does not, on the one hand, infringe the constitutional rights of the suspect(s), but equally infringe on the rights of the victim to the protection of the law. Police Officers constantly thread on eggshells. At times they get it wrong. At others, they get it right. Maphutha got it right.

The law

[16] The question of the reasonableness of the suspicion of the arresting officer must be evaluated objectively by the trier of fact.

See Du Toit et al, “Commentary on the Criminal Procedure Act” p5-8 and following. Quoting from Nkambule v Minister of Law and Order 1993 (1) SACR (T) 434 (TJ at 437i - 438e in relevant part, the plaintiff's counsel submitted that "Conflicting statements by the complainant and uncertainty as to the chronology of events can give rise to the suspicion that a Schedule 1 offense had been committed. This could place an obligation on an investigating officer to read the complainant's statement so as to clarify the position. If this procedure is not followed, any subsequent suspicion cannot be perceived to be reasonable" .

[17] Maphutha read the statement of the victim's mother. He took a statement from the victim. He had regard to the J88 and concluded

that he had his man. Whether or

not Maphutha needed to secure a warrant of arrest before arresting the plaintiff does not distract from the fact that he had a reasonable

suspicion that the plaintiff was the perpetrator. In its amended plea, the defendant averred that the plaintiff was arrested in terms of s40(1)(b) of the Criminal Procedure Act, Act No.51 of 1977.

[18] The Court in Louw v Minister of Safety and Security 2006 (2) SACR 178 (T), per Bertelsman J at p 187 stated that "I am of the view that time has come to state as a matter of law 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 officers believe on reasonable grounds that such a crime has been committed, this in itself does not justify an arrest

forthwith..... The power contained in s40 may be exercised only if there are reasonable grounds to suspect that the suspect will abscond if any application for a warrant is first made". A distinction must be made between unlawful arrest and unlawful detention. A police officer can arrest a suspect without a warrant in terms of s40 if she habours a reasonable suspicion that the suspect is the likely perpetrator of a crime. The subse­ quent detention of the suspect is another process which can only follow upon the per­ petrator's arrest. It is therefore not correct the proposition that Maphutha even though he haboured a reasonable suspicion that the plaintiff was the perpetrator of the crime, had no authority in terms of s40 to arrest him without a warrant.

[19] The criteria for arrest in terms of s40 are fourfold, namely that (a) the arrestor is a peace officer, ()b) the arrestor entertains a suspicion that an offense has been com­ mitted, (c) the offense is a Schedule 1 offence, and (d) the suspicion is on reasonable

grounds. See Duncan v Minister of Law and Order 1986 (2) SA 805 (A) and Minister of Safety and Security v Sekhoto 2011 (5) 367 (SCA).

[20]. The court in Gellman v Minister of Safety and Security [2008 SACR 446 WLD] provided a road map for the arrest by a peace officer of a suspect as follows

[97.5] 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.

[97.6] 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 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.

[97.7] 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."

[21]. I have no doubt in my mind that Maphutha's actions were with lawful cause. I have already stated above the steps that Maphutha took on the day in question and subsequent days thereafter.

[22]. In Gombakomba and Another v Minister of Police and Another 2014 ZAGPPHC 822 the court held that the formation of suspicion must not only be based on admissible evidence, but could be based on evidence that was hearsay. In Maphutha's case, he relied on more than hearsay evidence with his suspicion that led to the arrest of the plaintiff.

[23] The evidence of the defendant's witnesses was credible. Maphutha had no rea­ son to mislead the court. The same went for the evidence of the third defendant.

[24] I have some sympathy with the plaintiff. He appears justifiably aggrieved by his arrest. He was not afforded an opportunity to adequately defend himself and clear his name in a criminal trial. The matter before me is not whether plaintiff did or did not sexually assault C. The issue is whether Maphutha was justified in his arrest of the plaintiff. The plaintiffs evidence was also clear. He did not assault C. His, was an arrest based on circumstantial evidence. As already stated above, he was the only "adult" at the creche in charge of the children on the day in question. There has been no other reasonable explanation offered for the injuries of C.

[25] All of the actions of Maphutha lead to one conclusion only. He had a reasonable suspicion that the plaintiff committed a crime. He did what police officers are wont to do, effect an arrest.

[26] It is a trite principle in our law that costs ordinarily should follow the result. Alt­ hough the plaintiff has failed in his action against the defendant, I am not inclined to grant a cost order against the plaintiff.

[27] In the circumstances I make the following order:

1. The plaintiffs claim fails.

2. There is no order as to costs.

____________________

T.S MADIMA

ACTING JUDGE OF THE HIGH COURT

On behalf of the Plaintiff: Adv S.S Masina

Instructed by:

T Sikhala Attorneys

Pretoria

012 323-6020/ 012 303 7532

On behalf of the Respondent: Adv D.E Meyer

Instructed by:

State Attorney

012 309-1628

Dates of Hearing:

1 August 2017

Date of Judgment:

12 September 2017