Moje v Minister of Police (549/2021) [2025] ZANCHC 46 (30 May 2025)
|
|
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: 549/2021
Reportable:
YES/NO
Circulate
to Judges: YES/NO
Circulate
to Magistrates: YES/NO
Circulate
to Regional Magistrates: YES/NO
In
the matter between:
PRIVATE
PANANA
MOJE
Plaintiff
And
THE
MINISTER OF
POLICE
Defendant
Coram:
Lever J
JUDGMENT
Lever
J:
1.
The plaintiff’s claim against the Minister of Police, the
defendant, arises out of an alleged unlawful
arrest. It is alleged in
the Particulars of Claim that the arrest took place on the 4 May 2019
at or about 22H00 at Postmasburg.
It was alleged to be an unlawful
arrest and detention from the date of arrest up until the 12 November
2019.
2.
The plaintiff framed his claim in the following manner:
“6.
After his arrest, the Plaintiff was transported and detained at the
instance of the
arresting officer. The Plaintiff was unlawfully
detained until 12 November 2019 at or about 16H00, whereafter he was
released from
Postmasburg Magistrates Court.
7.
Both the arrest and subsequent detention of the Plaintiff were
unlawful, on one
or more of the following ground/s:
7.1
The arresting officer failed to properly familiarise himself with the
merits of the case,
prior to exercising his discretion to arrest or
not;
7.2
The arresting officer did not take into account the plaintiff’s
rights in terms of
Section 12 of Act 106 of 1996;
7.3
The plaintiff was arbitrarily and without good cause deprived of his
freedom;
7.4
The arresting officer failed to consider utilising alternative
methods to secure the attendance
of the Plaintiff at Court, as there
was no urgency and/or necessity to proceed with an arrest.
8.
The arresting officer had no right to interfere with the Plaintiff’s
constitutional
right to freedom, in that:
8.1
The Plaintiff did not pose any risk to the community;
8.2
The Plaintiff was not a flight risk;
8.3
There were no grounds present to reasonably suspect that the
Plaintiff would harm himself,
or any other member of the public;
8.4
There was no urgency for the arrest of the plaintiff;
8.5
The fact that the Plaintiff had a fixed address and was easily
traceable, was not taken
into consideration;
8.6
The police never had any reasonable grounds to effect arrest on (sic)
the Plaintiff.
9.
AND OR ALTERNATIVE:
The arrest and/or
subsequent detention of the Plaintiff was unlawful due to the fact
that the arresting officer had no prima facie case and/or
reasonable grounds to arrest the plaintiff and/or subsequently detain
him.
10.
AND OR ALTERNATIVE:
The arrest and/or
subsequent detention of the Plaintiff was further unlawful due to the
fact that the Arresting Officer did not
consider, alternatively
comply with the provisions of Standing Order G341 of the South
African Police Services. The arresting officer’s
aim when
arresting the Plaintiff were none of the following:
10.1 To
further investigate the matter;
10.2 To
prevent the Plaintiff from committing any further offences;
10.3 To
protect the plaintiff against himself or any other members of the
public.”
3.
The defendant responded to the said Particulars of Claim by pleading
as follows:
“6. AD
PARAGRAPH 6
Save to admit that the
Plaintiff was detained, the balance of the allegations contained in
this paragraph are denied.
7. AD
PARAGRAPH 7 AND 8
The content of this (sic)
paragraph and its subparagraphs are denied. The Defendant
specifically pleads that the Plaintiff was arrested
in terms of
Section 40(1)(b) of the Criminal Procedure Act in that the arresting
officer had a reasonable suspicion that Plaintiff
committed a
schedule 1 offence.
8. AD
PARAGRAPH 9
The contents of this
paragraph are denied. The defendant pleads further that a prima (sic)
case is not a requirement for an arrest
in terms of Section 40(1)(b)
of the Criminal Procedure Act.
9. AD
PARAGRAPH 10
The
contents of this paragraph are denied.”
4.
By agreement between the parties, the merits of this trial were
separated from the quantum. The special plea
relying on the required
notice as contemplated in Act 40 of 2002 was not pursued. For present
purposes the paragraphs from the
Particulars of Claim and the Plea
thereto, quoted above, define the issues to be determined by this
court at this time.
5.
The defendant accepted the onus of proof and the duty to begin and
led the evidence of three witnesses, whose
evidence will be dealt
with hereunder.
6.
The law for claims relating to unlawful arrest is that a person is
entitled to liberty and any deprivation
of such liberty must be done
on lawful grounds which the defendant must establish.
7.
The law on
what is required for a lawful arrest, where the defence is based on
section 40(1)(b) of the Criminal Procedure Act[1]
(the CPA), was re-visited and restated by the Supreme Court of Appeal
(SCA) in the now well-known case of MINISTER OF SAFETY AND
SECURITY v
SEKHOTO AND ANOTHER[2]. The SCA
in the Sekhoto case, considering the position of an arrest without a
warrant under the provisions of section 40(1)(b)
of the CPA quoted
the requirements as set out in the case of DUNCAN v MINISTER OF LAW
AND ORDER[3] with approval, and
set out the position as follows:
“[6]
As was held in Duncan
v Minister of Law and Order,
the jurisdictional facts for a s 40(1)(b) defence are that (i) the
arrestor must be a peace officer; (ii) the arrestor must entertain
a
suspicion; (iii) the suspicion must be that the suspect (the
arrestee) committed an offence referred to in schedule 1; and (iv)
the suspicion must rest on reasonable grounds. …”[4]
8.
The SCA in
Sekhoto’s case considered whether there was now a fifth
jurisdictional fact required, being as set out by Bertelsmann
J in
the case of LOUW & ANOTHER v MINISTER OF SAFETY & SECURITY &
OTHERS[5], that arrest being an
invasion of the constitutional right to liberty that the police are
required to consider if there are no
less invasive means to bring the
suspect before court than the immediate arrest and detention of the
said suspect. The SCA in the
Sekhoto case held that there was no such
fifth jurisdictional fact required.[6]
9.
As the SCA
in the Sekhoto case point out even if the four jurisdictional facts
are established the arresting peace officer then
has a discretion
whether to arrest or not.[7]
This discretion must be properly exercised.[8]
Such discretion must be exercised in good faith, rationally and not
arbitrarily.[9] It points out
that: “The standard is not perfection or even optimum, judged
from the vantage of hindsight – so long
as the discretion is
exercised in this range (ie being exercised in good faith, rationally
and not arbitrarily), the standard is
not breached.”[10]
10.
In Sekhoto, the SCA points out that the said considerations of good
faith, rationality and absence of arbitrariness do not tell
the court
what factors the peace officer must weigh-up in exercising this
discretion. On this aspect the SCA offers the following
guidance:
“[40]
… An official who has discretionary powers must, as alluded
earlier, naturally exercise them within
the limits of the authorising
statute, read in the light of the Bill of Rights. Where the statute
is silent on how they are to
be exercised, that must necessarily be
deduced by inference in accordance with the ordinary rules of
construction, consonant with
the Constitution, in the manner
described by Langa CJ in Hyundai.
[41]
In this case the legislature has not expressed itself on the manner
in which the discretion to arrest
is to be exercised: that must be
discovered by inference. And in construing the statute for that
purpose, the section cannot be
viewed in isolation, as the court
below appears to have done.”[11]
(references omitted)
11.
In
relation to arrest without a warrant as contemplated in section
40(1)(b) the SCA in Sekhoto examined the CPA and
the purpose of an
arrest being to bring a person to trial. The arrest is but the first
step in this process and the person arrested
must be brought before a
court as required by law. The authority to further detain to secure
attendance at a trial is within the
discretion of the court. In these
circumstances the SCA concluded that: “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 the decision on that question is
rational, naturally
depends on the particular facts, …”[12]
12.
The SCA in
Sekhoto, as Stretch J indicates in the matter of BARNARD v MINISTER
OF POLICE[13] does not decide
that “…the prudent policeman endowed with a discretion
to arrest is at large to simply ignore less
invasive methods, and, in
doing so, to fail to exercise that discretion properly or at
all.”[14]
13.
The onus of
establishing that an arresting officer did not exercise such
discretion properly or at all rests upon the person alleging
that, ie
in this case the plaintiff.[15]
14.
The questions as to whether the necessary jurisdictional facts have
been established by the defendant or not and the question
as to
whether the discretion of the arresting officer was exercised
properly or at all are questions of fact. In these circumstances
the
evidence adduced on behalf of the defendant needs to be set out in
some detail.
15.
An armed robbery took place in Postmasburg on the 30 April 2019. A
businessman involved in the cash loans business had just
withdrawn
some R800,000.00 cash from a bank in Postmasburg, whereafter he was
accosted, shot and injured and robbed of the R800,000.00
cash. The
evidence led established that the robbers were four black men.
16.
The factual question to be decided by this court is, was there
sufficient evidence at the time of the arrest, being the 4 May
2019,
to link the plaintiff to the said robbery in the manner contemplated
by the four jurisdictional grounds required to affect
an arrest
without a warrant in the manner contemplated by section 40(1)(b) of
the CPA.
17.
Thereafter the court will consider whether on the established facts
the arresting officer exercised a discretion at all and
if so whether
the exercise of such discretion was done in good faith, rationally
and not arbitrarily.
18.
Finally, this court will determine on the established facts whether
the plaintiff is entitled to damages for wrongful detention
and if
so, up to what point as against the present defendant, being the
Minister of Police.
19.
In his attempt to discharge the onus of establishing the four
jurisdictional requirements to effect an arrest without a warrant
as
contemplated by section 40(1)(b) of the CPA the defendant led the
evidence of three witnesses. The three witnesses concerned
are:
Lieutenant-Colonel (Lt-Col) Aggrey Sylvester Magugu (Magugu); Lt-Col
Jan Andries Adios Witbooi (Witbooi); and Warrant Officer
(W O)
Stefaans Mangate (Mangate). All of whom are peace officers in the
South African Police Services (SAPS). It is common cause
that they
were all acting within the course and scope of their employment with
the defendant at all material times.
20.
The plaintiff elected not to testify.
21.
Lt-Col Magugu testified that at the time of the incident on the 30
April 2019, he held the rank of Captain in the SAPS. His
duties at
that time were to investigate murders and robberies in the entire
Northern Cape Province. He was ordinarily based in
Kimberley. His
commanding officer the Late Brigadier De Waal ordered him to go to
Postmasburg to investigate the relevant armed
robbery. He travelled
from Kimberley to Postmasburg that very evening.
22.
On arrival in Postmasburg he was directed to a house situated at 8
Motlaretshiba Street, Dichoko, Postmasburg. In the trial,
this house
was described as the secondary crime scene. Lt-Col Magugu arrived to
find several police officials and vehicles at this
house. He arrived
just in time to witness three suspects being removed from the ceiling
of this house.
23.
Lt-Col Magugu then subsequently learnt that when the police arrived
at the secondary crime scene, that three suspects fled and
hid in the
ceiling of that house and that Katlego Moje, the plaintiff’s
cousin, fled out of the back door with a certain
Victor Might. Victor
Might, it turns out was to be used as a witness in the armed robbery
criminal trial.
24.
Bloodstained clothes were found in the dustbins at the said house.
These clothes matched the eyewitness descriptions given of
those
involved in the said armed robbery.
25.
The next day Lt-Col Magugu also learned that on the 30 April 2019
Katlego Moje, the plaintiff’s cousin, was at the home
of Victor
Might in a security housing complex belonging to Polomela Mines. The
report was that Katlego Moje alighted from the vehicle
he had been
travelling in and broke a window at Victor Might’s house.
Katlego Moje then returned to the vehicle, a KIA SUV
and the car
drove off.
26.
Lt-Col Magugu obtained this information from two witnesses, one a
neighbour Cecilia Van Der Westhuizen and the other a security
guard
employed at the housing security complex. The security guard,
Motsamai Clive Manere informed Lt-Col Magugu that he got the
information from Victor that Katlego Moje was on his property and had
broken a window at his house. Mr Manere informed Lt-Col Magugu
that
he observed that the person who was on Victor’s property left
in the passenger seat of a silver KIA with registration
number
K[…].
27.
Lt-Col Magugu testified that he had this information before the
arrest of the plaintiff, although the relevant written statements
were only taken some time after the arrest of the plaintiff.
28.
Lt-Col Magugu traced the registration number of the said KIA motor
vehicle and found it was registered to the plaintiff, Private
Panana
Moje. He found out that the plaintiff was staying in Dichoko not far
from where the others were arrested at the secondary
crime scene. His
investigators visited the plaintiff’s house for a couple of
days trying to get hold of the plaintiff.
29.
Lt-Col Magugu testified that he was looking for the plaintiff because
Katlego Moje fled the secondary crime scene with Victor
Might and he
suspected that plaintiff, Panana Moje, might have assisted Katlego
Moje to flee Postmasburg. The basis for Lt-Col
Magugu’s
suspicion that the plaintiff might have assisted his cousin to flee
Postmasburg was not disclosed at this stage
and it seems was only
partially confirmed after the arrest when Lt-Col Magugu interviewed
the plaintiff. I say partially confirmed
because no basis was laid or
established that prior to his transporting his cousin to Pampierstad
plaintiff knew his cousin was
in fact fleeing from the police.
30.
Then Lt-Col Magugu testified that he learnt that the plaintiff was
back in Postmasburg and that he gave an instruction to bring
the
plaintiff in for questioning. Counsel for the defendant, Mr Davis,
then asked Lt-Col Magugu specifically whether he gave an
instruction
to bring the plaintiff in for questioning or whether he gave an
instruction to arrest the plaintiff. To which Lt-Col
Magugu responded
that he instructed W O Mangate to bring the plaintiff in for
questioning but that if it was possible to arrest
the plaintiff, the
plaintiff should be arrested.
31.
Then Counsel for the defendant, Mr Davis, asked Lt-Col Magugu if he
knew whether the plaintiff was brought in for questioning
or
whether plaintiff had been arrested. To which he responded that the
plaintiff was brought in for questioning. Lt-Col Magugu
testified
that he interviewed the plaintiff. That during such interview
plaintiff admitted that he drove Katlego Moje, his cousin,
to
Pampierstad at the request of the said Katlego Moje. Plaintiff
indicated during the said interview that on the day of the relevant
robbery he was in Dichoko, Postmasburg. Plaintiff indicated during
the said interview that he received a call from his cousin Katlego
to
pick him up in the township, which he did and that he took Katlego to
Pampierstad that evening.
32.
Lt-Col Magugu testified that the plaintiff could not explain why
Katlego asked him to take him to Pampierstad that evening.
33.
Lt-Col Magugu then testified that after the interview he then sought
guidance from the office of the Director of Public Prosecutions
(the
DPP) and that he was advised by the office of the DPP to detain the
plaintiff for armed robbery. Acting on this advice the
plaintiff was
detained on a charge of armed robbery.
34.
In his evidence-in-chief Lt-Col Magugu indicated that the plaintiff
had applied for bail and that it was refused. At this point
Lt-Col
Magugu testified that he cannot recall why bail was refused as it was
a long time ago.
35.
Lt-Col Magugu testified that the plaintiff was not at the scene
during the actual robbery concerned.
36.
Mr Davis, Counsel for the defendant, asked Lt-Col Magugu in-chief why
the plaintiff was detained. To which Lt-Col Magugu answered
due to
the seriousness of the crime.
37.
A leading question was then put to Lt-Col Magugu by Mr Davis. This
question was to the effect that Sgt Mangate arrested the
plaintiff,
where is he (Mangate) stationed? Mr Du Plessis, who appeared for the
plaintiff did not object to this question. Up to
that point it had
not been the direct evidence of Lt-Col Magugu that W O Mangate had
been the arresting officer in this matter.
Lt-Col Magugu’s
answers had been ambiguous on this aspect. In any event, in response
to Mr Davis’ leading question,
Lt-Col Magugu’s response
was directed at the part of the question dealing with W O Mangate
being stationed at the Organised
Crime Branch in Kimberley with
Lt-Col Magugu and he did not take the bait and left the question as
to who in fact effected the
arrest of the plaintiff ambiguous at that
point of his evidence.
38.
Lt-Col Magugu testified that he and his team remained in Postmasburg
until all the suspects were arrested.
39.
Mr Davis asked Lt-Col Magugu when his team, including W O Mangate
arrived, whether they familiarised themselves with the docket
and
what the matter was about. To which Lt-Col Magugu responded that yes
that there would normally be a briefing and that they
were all aware
that they were looking for the plaintiff.
40.
Then, in-chief, Mr Davis asked Lt-Col Magugu whether the plaintiff
was an accused in the criminal trial relating to the relevant
robbery. Lt-Col Magugu responded, no, the charges against the
plaintiff were provisionally withdrawn after instructions from the
Office of the DPP pending the outcome of the criminal trial. That
concluded Lt-Col Magugu’s evidence in chief.
41.
In cross-examination, Lt-Col Magugu confirmed the fourth suspect in
the relevant robbery was identified as Katlego Moje, the
plaintiff’s
cousin. That the information provided at the briefing was that
Katlego Moje drove a white BMW vehicle which the
suspects used to get
away from the primary crime scene. That at that time there was never
a suspicion that any other black males
were involved in the robbery
itself.
42.
Lt-Col Magugu confirmed that at least one of the wounded suspects
removed from the ceiling of the secondary crime scene co-operated
fully with the investigation and made a statement about how the
robbery was executed and this statement made no mention of the
plaintiff.
43.
Lt-Col Magugu confirmed that at the secondary crime scene where three
of the suspects were arrested, he was informed that Katlego
Moje, the
plaintiff’s cousin, had escaped through the back door with
Victor Might when the police arrived on the scene.
44.
Lt-Col Magugu confirmed that Victor Might had aided the suspects in
dressing their wounds at the secondary crime scene, but
that Victor
Might was not a suspect and was never arrested. Victor Might was
interviewed and he gave a statement, possibly before
the arrest of
the plaintiff, but he did not implicate the plaintiff in any way.
45.
Mr Du Plessis asked Lt-Col Magugu why Victor Might was not arrested
in circumstances where it was established that he assisted
the
suspects where in the case of the plaintiff Lt-Col Magugu only had a
suspicion that plaintiff had assisted one of the suspects,
his cousin
Katlego, yet plaintiff was arrested. Lt-Col Magugu did not directly
answer this question.
46.
Lt-Col Magugu confirmed that Victor Might had not in any manner
implicated the plaintiff in the relevant robbery.
47.
Lt-Col Magugu confirmed that a lady, an employee of the bank, one
Joyce Kubeta, was arrested for assisting those involved in
the
relevant robbery with information. She was allowed out on bail and
her bail was not opposed. She later became a section 204
witness for
the prosecution. Lt-Col Magugu confirmed that she had not implicated
the plaintiff in any way in respect of the relevant
armed robbery.
48.
Mr Du Plessis asked Lt-Col Magugu if at the time of plaintiff’s
arrest, there was any information on oath linking the
plaintiff to
the robbery itself. Lt-Col Magugu answered the plaintiff aided his
cousin Katlego to flee knowing he was wanted. Also,
that according to
the other suspects, the money was still with Katlego.
49.
Mr Du Plessis then pressed the point that he was referring to the
robbery itself in his previous question. To which Lt-Col Magugu
responded there was no information linking the plaintiff to the main
crime scene where the robbery occurred, but that in his previous
answer he was referring to the plaintiff aiding his cousin Katlego.
50.
Mr Du Plessis put to Lt-Col Magugu that the relevant charge in those
circumstances would be defeating the ends of justice. To
which Lt-Col
Magugu responded that he asked for guidance from the office of the
DPP and that he was directed to charge the plaintiff
with armed
robbery.
51.
Mr Du Plessis then asked Lt-Col Magugu if at the time of the
plaintiff’s arrest there was any information that plaintiff
had
unlawfully and intentionally assaulted anyone. To which Lt-Col Magugu
responded that plaintiff was not at the main crime scene
where the
robbery took place.
52.
Mr Du Plessis then asked if there was any information that the
plaintiff had received any of the money being the proceeds of
the
robbery. Lt-Col Magugu responded that the information at his disposal
was that Katlego had the money and that it was only the
plaintiff and
Katlego that fled from Postmasburg. Lt-Col Magugu continued that he
would not know if plaintiff received any of the
money because neither
the plaintiff nor Katlego wanted to discuss the money. Clearly, this
statement that they did not want to
discuss the money could only have
been obtained after the arrest of the plaintiff.
53.
Mr Du Plessis then put to Lt-Col Magugu that in his evidence-in-chief
he did not state that the plaintiff transported Katlego
with the
money as a reason for the arrest. To which Lt-Col Magugu responded
that he maintains it now because Mr Du Plessis asked.
In the context
of the fact that if he had such information that plaintiff knew of
the robbery and that he was assisting Katlego
to evade arrest with
the money it would certainly be a basis for a reasonable suspicion
that plaintiff was involved in a schedule
1 offence, such answer in
the present context is simply not reasonable and nor is it credible
in the circumstances disclosed to
this court. If Lt-Col Magugu had
such information on or before plaintiff’s arrest, it would
clearly have been front and central
to his evidence in chief, which
it was not.
54.
Mr Du Plessis then asked Lt-Col Magugu if there was any evidence that
plaintiff knew what his cousin Katlego did. To which Lt-Col
Magugu
replied that he wouldn’t know if plaintiff knew what Katlego
did. This is at odds with Lt-Col Magugu’s answer
to the
previous question.
55.
Lt-Col Magugu confirmed that after his arrest plaintiff co-operated
with him.
56.
Mr Du Plessis put it to Lt-Col Magugu that after plaintiff was
informed of his rights and prior to his warning statement and
despite
plaintiff electing to have legal representation plaintiff voluntarily
informed him that his cousin Katlego told plaintiff
and he requested
to be taken to Pampierstad. Lt-Col Magugu confirmed this to be
correct.
57.
Mr Du Plessis then put to Lt-Col Magugu that during his interview
with the plaintiff, plaintiff told him that he (the plaintiff)
had no
knowledge of Katlego’s involvement in the robbery. Lt-Col
Magugu disputed this saying he asked the plaintiff that
question but
that that was not the plaintiff’s reply. Mr Du Plessis then
asked Lt-Col Magugu what was plaintiff’s reply.
Lt-Col Magugu’s
response was evasive of Mr Du Plessis original line of questioning
regarding plaintiff’s knowledge
of his cousin Katlego’s
involvement in the robbery. Finally, on this aspect Lt-Col Magugu
asserted that the plaintiff told
him that his cousin Katlego said to
him that something had happened and that he needed to get to
Pampierstad and that plaintiff
did not mention any emergency. This is
at odds with Lt-Col Magugu’s response to a proposition put to
him by Mr Du Plessis
only a few minutes prior to this assertion.
58.
Lt-Col Magugu again asserted that he was in Postmasburg the whole
time since the date of the robbery. The relevance of this
will
manifest itself when I deal with the evidence of Lt-Col Witbooi.
59.
Lt-Col Magugu confirmed that he was aware that at the material time
the plaintiff was employed. Lt-Col Magugu also confirmed
that the
plaintiff had voluntarily surrendered his cell phone.
60.
Mr Du Plessis put it to Lt-Col Magugu that the plaintiff handed over
his cell phone to prove that plaintiff had no knowledge
of Katlego’s
involvement in the robbery or what happened in the robbery. To which
Lt-Col Magugu responded he would not be
able to say if plaintiff knew
or did not know of his cousin Katlego’s involvement in the
robbery or what happened in the
robbery.
61.
Mr Du Plessis then asked Lt-Col Magugu if he found anything on the
plaintiff’s cell phone. To which Lt-Col Magugu responded
that
he found nothing incriminating the plaintiff on the said cell phone.
62.
Mr Du Plessis then referred to page 248 in the plaintiff’s
trial bundle, which is a copy of the charge sheet, which shows
that
the plaintiff was charged with robbery with aggravating
circumstances. Mr Du Plessis then asked Lt-Col Magugu whether he
agreed that plaintiff should be linked to a fair degree before the
plaintiff was charged with robbery with aggravating circumstances.
To
which Lt-Col Magugu responded that plaintiff had aided a person to
flee with the money. Given the seriousness of the matter
for him that
was enough and that he was advised to charge the plaintiff with the
robbery by the office of the DPP.
63.
Mr Du Plessis asked Lt-Col Magugu if the office of the DPP gave
advice to arrest the plaintiff. To which Lt-Col Magugu responded
when
he contacted the office of the DPP the plaintiff had already been
arrested and that the office of the DPP advised that the
plaintiff
should be charged with the offence set out in the charge sheet.
64.
Then Mr Du Plessis asked Lt-Col Magugu who decided to arrest the
plaintiff. To which Lt-Col Magugu responded that the arresting
officer would come and explain that to the court.
65.
Lt-Col Magugu confirmed that at the time of the arrest he only had
verbal statements from the neighbour and the security guard
already
referred to and that the written statements came after the arrest of
the plaintiff.
66.
Lt-Col Magugu confirmed that in terms of the SAPS Standing Order G341
that arrest without a warrant should be used as a last
resort.
67.
Lt-Col Magugu confirmed that he received information the day after
the robbery relating to plaintiff’s involvement in
transporting
his cousin Katlego. In the context of Lt-Col Magugu’s evidence
viewed holistically, this can only relate to
the plaintiff
transporting his cousin Katlego to the house of Victor Might because
Lt-Col Magugu testified earlier that it was
only after his interview
with the plaintiff that he was informed that plaintiff transported
Katlego Moje to Pampierstad.
68.
Lt-Col Magugu was asked if at the time of the robbery he was a
Captain. The response to this question left this court in the
dark as
to what the factual position was at the material time. Lt-Col Magugu
responded: “Let me correct that currently I
hold the rank of
Lt-Col.” Then Mr Du Plessis put to Lt-Col Magugu as a senior
officer he could have issued the warrant of
arrest. Lt-Col Magugu
responded that no, only a full Colonel can sign a warrant of arrest.
69.
My understanding of the law in this regard is that any commissioned
officer in the SAPS can issue a warrant of arrest, but the
practice
is that such officer should not issue a warrant in a matter in which
they are directly involved.
70.
Then there was a line of questioning relating to the surrender of the
plaintiff’s cell phone. Lt-Col Magugu could not
confirm that
the said cell phone was handed to Lt-Col Witbooi on the 1 May 2019.
He could also not confirm that the plaintiff surrendered
his cell
phone before his arrest and his position was that the surrender of
such cell phone may have been handled by one of the
other
investigators on the investigation team. Lt-Col Magugu’s
position was that at the time of plaintiff’s arrest
he did not
know that there was nothing on the said cell phone to incriminate the
plaintiff.
71.
Then Mr Du Plessis put to Lt-Col Magugu that his evidence in chief
was that he instructed W O Mangate to bring the plaintiff
in for
questioning and if it was possible to arrest plaintiff to do so. Mr
Du Plessis also put it to Lt-Col Magugu that plaintiff
was arrested
after his interview with Lt-Col Magugu. To which Lt-Col Magugu
responded that he did not know if plaintiff was arrested
at
plaintiff’s house and that the arresting officer would be able
to answer that question.
72.
In response Mr Du Plessis put to Lt-Col Magugu that he was the
investigating office in the relevant case. The implication being
that
in those circumstances Lt-Col Magugu should know the answer to the
preceding question. To this Lt-Col Magugu responded that
although he
was the lead investigator he did not do everything and that they
worked as a group.
73.
Then Mr Du Plessis put to Lt-Col Magugu that even if the plaintiff
was arrested before his interview with Lt-Col Magugu that
Lt-Col
Magugu would have condoned the plaintiff’s arrest. Lt-Col
Magugu confirmed this as being correct.
74.
Mr Du Plessis then put to Lt-Col Magugu that this would have been the
position irrespective of whether he conducted an interview
with the
plaintiff. Lt-Col Magugu responded yes based on the information he
had at hand.
75.
Mr Du Plessis then put to Lt-Col Magugu that the criminal charges
against the plaintiff were withdrawn on the 12 November 2019.
Lt-Col
Magugu confirmed that the criminal charges against the plaintiff were
withdrawn but said he could not recall the date.
76.
Mr Du Plessis asked, if as the investigating officer he knew the
reason for the withdrawal of the criminal charges against the
plaintiff. Lt-Col Magugu responded that the charges were
provisionally withdrawn against the plaintiff pending the outcome of
the criminal trial.
77.
Mr Du Plessis then put to Lt-Col Magugu that it was the plaintiff’s
version that he was informed in court that the charges
were withdrawn
because there was no evidence linking him to any of the events
related to the relevant robbery. Lt-Col Magugu responded
that, that
is the plaintiff’s version.
78.
An exchange then followed as to whether there was an official notice
from the DPP relating to the withdrawal of those charges
and whether
there was documentary evidence of this. In the present circumstances
this does not take the matter further and will
not play a part in the
reasoning of this court. For present purposes it is sufficient that
all parties agree that the charges were
withdrawn and this court can
draw its own inferences from that fact.
79.
The plaintiff’s version was put to Lt-Col Magugu in some
detail. Plaintiff elected not to testify so his version in so
far as
it conflicts with the evidence adduced on behalf of the defendant is
not evidence before this court. On plaintiff’s
version he was
arrested at his home on the 4 May 2019 which is consistent with most
of the evidence adduced on behalf of the defendant.
80.
In substance that was the evidence of Lt-Col Magugu. The second
witness called by the defence was Col Witbooi. It appears from
the
evidence given by Col Witbooi that the main reason he was called as a
witness for the defendant was to rebut the plaintiff’s
version
as it was put to Lt-Col Magugu. As plaintiff did not testify himself
and plaintiff’s version is not evidence before
this court, most
of Col Witbooi’s evidence will not assist this court to
determine if the defendant has established the four
jurisdictional
requirements necessary to justify a defence under section 40(1)(b) of
the CPA. Col Witbooi’s evidence might
be useful in assessing
the reliability and credibility of the evidence of Lt-Col Magugu.
81.
Col Witbooi gave a description of what happened at the secondary
crime scene and testified that Lt-Col Magugu arrived at the
secondary
crime scene while it was still an active crime scene. Col Witbooi
testified that he kept contact with Lt-Col Magugu during
the
investigation of the said armed robbery. Col Witbooi testified that
Lt-Col Magugu arrived in Postmasburg on the same evening
as the
robbery, but that Lt-Col Magugu was in and out of Postmasburg during
the said investigation. This is at odds with the evidence
of Lt-Col
Magugu whose evidence was to the effect that he remained in
Postmasburg until all the suspects were arrested and placed
in
custody.
82.
Col Witbooi confirmed that the Organised Crime Unit took over the
investigation and they ran all the activities related to the
investigation and that he never received a cell phone from the
plaintiff.
83.
The first time Col Witbooi met the plaintiff was at the magistrate’s
court at some stage during the criminal trial. Col
Witbooi confirmed
that he had no involvement in the physical investigation of the
relevant robbery.
84.
Col Witbooi did not know when the criminal charges were withdrawn
against the plaintiff.
85.
Col Witbooi confirmed that in the SAPS Captains and Colonels are
commissioned officers. Col Witbooi confirmed that commissioned
officers can issue a warrant of arrest and that at the time as a
Captain, Lt-Col Magugu could in fact issue a warrant of arrest.
This
is a direct contradiction of Lt-Col Magugu’s evidence.
86.
Col Witbooi confirmed that at the secondary crime scene when three of
the suspects were arrested there were police armed with
assault
rifles. That even when the suspects were transported to and from
court the escourts were armed with R5 assault rifles.
That in serious
cases such as the relevant robbery it was routine to have people
armed with such weapons.
87.
The final witness called by the defendant was W O Stefaans Mangate.
He is a warrant officer in the provincial organised crime
unit of the
SAPS. At the time of the relevant robbery, he worked on what was
described as the Trio crimes which inter alia involved armed
robbery, business and house robbery as well as kidnapping.
88.
W O Mangate was on duty on the 30 April 2019. On that evening, he
received an order to be at Postmasburg on the 1 May 2019 to
be part
of the team to investigate an armed robbery. They drove through to
Postmasburg and met Lt-Col Magugu at a guesthouse. Where
Lt-Col
Magugu explained the case to them.
89.
W O Mangate said they were told that one of the suspects worked at
the mine and they should check if he was at work. They were
referring
to Katlego Moje’s cousin who they would like to question, being
the plaintiff in this matter. At this point it
needs to be noted that
W O Mangate referred to the plaintiff’s cousin interchangeably
as Katlego or Kagiso Moje, from the
context it is clear that this
referred to the same person and the discovered documents confirmed
that he bore both of the said
forenames.
90.
W O Mangate testified that they looked for Katlego Moje’s
cousin at his place of work but the feedback they were given
was that
he was not at work. It appears that this took place on the 1 May
2019, being a public holiday.
91.
W O Mangate testified that he tested the registration number of the
KIA motor vehicle and found it was registered to P.P. Moje.
Although
at the time of his evidence W O Mangate could not remember the
relevant vehicle registration number apart from the fact
that it
ended in NW indicating the vehicle was registered in the North-West
Province.
92.
W O Mangate testified that he got such registration number from
Lt-Col Magugu who informed him that he had got the said registration
number in a statement from a witness.
93.
W O Mangate testified that after he got the registration number
Lt-Col Magugu asked him to check if the plaintiff was at work.
This
aspect has already been dealt with above.
94.
W O Mangate testified that he and his partner did not work during the
daylight hours of the 4 May 2019, that they only went
on duty that
evening. That Lt-Col Magugu contacted them and asked them to be on
the lookout for the plaintiff and his cousin Katlego.
W O Mangate’s
evidence was that they then did patrols in the environs of
Postmasburg and its surroundings. Then at some point
during their
patrols Lt-Col Magugu contacted them and told them that he had
received information that the plaintiff is at his home.
95.
W O Mangate then testified that they then drove to the plaintiff’s
residence and they found a man who at that time was
unknown to him.
He introduced himself to that person and explained the reason why he
was at his residence at that time. The said
man introduced himself to
him as Private Panana Moje, the plaintiff, he stood in the door of
his house and was wearing a white
vest with a blue overall that had
yellow stripes just above the knees.
96.
W O Mangate then testified that he informed the plaintiff that he was
going to arrest him on a charge of armed robbery. W O
Mangate
testified that he explained the rights of a person being arrested to
the plaintiff. He then loaded the plaintiff in the
vehicle they were
using at the time and took him to the police station where the
plaintiff was handed to Lt-Col Magugu for questioning.
97.
W O Mangate testified that after Lt-Col Magugu had questioned the
plaintiff, Lt-Col Magugu handed the plaintiff back to him.
He then
proceeded to the charge office with the plaintiff to obtain a form
14A. W O Mangate explained that a form 14A was a formal
notice to the
plaintiff of the rights he has under the constitution on being
arrested.
98.
After the form 14A was completed W O Mangate handed a copy of the
said form together with his own statement to Lt-Col Magugu
and took
the plaintiff to the cells.
99.
W O Mangate testified that Lt-Col Magugu told him that Kagisho
(Katlego) Moje was part of the relevant robbery and that plaintiff
took him away before the police could arrest him (Katlego). This is
at odds with the evidence of Lt-Col Magugu, which was to the
effect
that he only obtained the information that plaintiff had taken his
cousin Katlego to Pampierstad during his interview with
the
plaintiff.
100.
W O Mangate testified that the docket was available when the
investigating team had meetings
with Lt-Col Magugu. He stated that he
had read the docket before he arrested the plaintiff. He stated that
there were statements
of the police involved as well as other
statements in the docket at the time. From the contents of the
docket, he had established
that the plaintiff was not at the primary
crime scene. In respect of the secondary crime scene W O Mangate
testified he was not
sure if the plaintiff collected his cousin from
the secondary crime scene or if plaintiff’s cousin went to
plaintiff’s
house.
101.
W O Mangate then said that the information he had at his disposal
before the arrest of the plaintiff,
he had obtained from Lt-Col
Magugu.
102.
W O Mangate then testified that he had seen the statement of Victor
Might to the effect that
someone told him that the plaintiff’s
vehicle was at his residence. However, the statement of Victor Might
was only taken
on 5 June 2019 after the arrest of the plaintiff.
Also, such statement does not correspond with W O Mangate’s
earlier evidence.
103.
Mr Davis then asked W O Mangate to confirm his earlier testimony that
he received a call from
Lt-Col Magugu to arrest the plaintiff and Mr
Davis asked W O Mangate if Lt-Col Magugu told him on what charges the
plaintiff was
to be arrested. To which W O Mangate responded that
Lt-Col Magugu told him to arrest the plaintiff on a charge of armed
robbery.
This is at odds with Lt-Col Magugu’s evidence that he
was only advised by the DPP’s office of the charge to be
preferred
against the plaintiff after his interview with the
plaintiff.
104.
Then Mr Davis asked W O Mangate given the fact that he had
established that the plaintiff was
not at the primary crime scene
where the robbery took place why did he believe it was appropriate to
arrest the plaintiff on a
charge of armed robbery. To which W O
Mangate responded that Lt-Col Magugu informed him that he had
contacted the Office of the
DPP who allegedly advised Lt-Col Magugu
that the plaintiff should be charged with armed robbery. Clearly,
this cannot be correct
for the reason already set out in the
preceding paragraph.
105.
W O Mangate then testified due to the seriousness of the armed
robbery he held the plaintiff.
106.
Mr Davis asked W O Mangate if he considered charging the plaintiff
and releasing him to a court
date. To which W O Mangate replied that
the Investigating Officer had to take the decision as to what to do
with the plaintiff
after his arrest.
107.
Mr Davis asked W O Mangate why he believed the plaintiff had
genuinely committed a crime. To
which W O Mangate responded because
the plaintiff moved his cousin from the vicinity to a destination
that was unknown to him at
the time he gave evidence. As indicated
above, this could not have played a role in W O Mangate’s
decision to arrest plaintiff
because on the evidence of Lt-Col
Magugu, which W O Mangate concedes was his only source of information
relevant to the arrest
of the plaintiff, Lt-Col Magugu only found out
that plaintiff had removed his cousin Katlego from Postmasburg after
interview with
the plaintiff, which interview on W O Mangate’s
evidence only took place after the arrest.
108.
W O Mangate testified that during the arrest of the plaintiff, he
asked the plaintiff for his
cell phone which the plaintiff
voluntarily surrendered to him and granted W O Mangate permission to
scroll through the information
stored on that phone. W O Mangate
found that the call log and the messages file were empty. After
scrolling through the said phone’s
memory, he placed the phone
in an evidence bag and handed it to Lt-Col Magugu. This is at odds
with the evidence of Lt-Col Magugu
on this aspect.
109.
W O Mangate testified that at a certain time Katlego Moje, in the
company of an advocate representing
him, handed himself over to W O
Mangate.
110.
Mr Davis then asked W O Mangate if he had any reason not to give
effect to the command of Lt-Col
Magugu to arrest the plaintiff. To
which W O Mangate responded he had no reason not to carry out such
order.
111.
Mr Davis then asked W O Mangate if he had any reason not to arrest
the plaintiff based on the
information given to him by Lt-Col Magugu.
To which W O Mangate responded he had every confidence in Lt-Col
Magugu.
112.
Mr Davis then asked W O Mangate based in the information given to him
by Lt-Col Magugu and the
information contained in the docket did W O
Mangate have a suspicion that a crime had been committed by the
plaintiff. To which
W O Mangate responded yes, he prevented the
police from arresting his cousin. Whether this constituted a schedule
one offence was
not canvassed by the defendant in leading the
evidence of W O Mangate. For that matter neither of the other two
defence witnesses
canvassed this question.
113.
This concluded the evidence in chief of W O Mangate. Mr Du Plessis
commenced his cross-examination
by asking at what time did he and the
others who had travelled to Postmasburg from Kimberley arrive at the
guesthouse in Postmasburg
where the first meeting was held on 1 May
2019. W O Mangate replied that they had left Kimberley at 7am and
they arrived at the
said guesthouse between 10 and 11 that morning.
114.
W O Mangate testified that it was during this first meeting that
Lt-Col Magugu informed them
that he had certain statements and had to
collect others. Mr Du Plessis asked him if Lt-Col Magugu had informed
them that he had
statements that connect the plaintiff to the
robbery. W O Mangate did not answer this question directly, he simply
repeated that
Lt-Col Magugu had received information and had to fetch
certain statements. This answer did not deal with the central enquiry
inherent
in Mr Du Plessis’ question.
115.
Mr Du Plessis asked W O Mangate if on the 1 May 2019 Lt-Col Magugu
informed him that he had statements
linking the plaintiff to the
robbery. In response to this question W O Mangate said yes Lt-Col
Magugu did inform them he had statements
linking the plaintiff to the
relevant robbery.
116.
W O Mangate said he did not have sight of these statements and that
he had only read the statement
of Victor Might. From the discovered
documents it emerges that the statement of Victor Might is dated 5
June 2019, quite some time
after the plaintiff’s arrest and so
could not have played a role in the decision to arrest the plaintiff.
It also calls into
question W O Mangate’s testimony that he had
read the statement of Victor Might before the arrest in question.
117.
Mr Du Plessis put to W O Mangate that Lt-Col Magugu relied on two
persons whose statements linked
the plaintiff to the relevant crime,
namely Cecilia Van Der Westhuizen, whose written statement is dated
21 September 2019 and
Motsamai Clive Manere whose statement is dated
the 5 May 2019. W O Mangate answered that Lt-Col Magugu can be
correct, but he was
constrained to admit that he did not read those
two statements before the arrest of the plaintiff. However, he said
he remembers
that on the night of the 1 May 2019 Lt-Col Magugu
mentioned Cecilia.
118.
W O Mangate confirmed that the plaintiff was arrested on the 4 May
2019 before either of the
written statements of Van Der Westhuizen or
Manere existed.
119.
W O Mangate confirmed that in his evidence in chief that he testified
that he relied upon both
the contents of the docket and the
instructions of Lt-Col Magugu. However, W O Mangate was forced to
admit under cross-examination
that the contents of the docket did not
link the plaintiff to the relevant robbery. W O Mangate testified
that he informed the
plaintiff that the reason for his arrest was
that his cousin was involved in a robbery and he had removed his
cousin from Postmasburg
to avoid arrest. W O Mangate could not answer
the question when it was pointed out to him that neither the
statement of Van Der
Westhuizen nor that of Manere stated that
plaintiff removed Katlego from Postmasburg. He was further forced to
admit that the information
provided to him by Lt-Col Magugu on 1 May
2019 was not supported by the statements that were eventually placed
on the docket.
120.
W O Mangate admitted that he effected the arrest of the plaintiff on
the strength of an order
from Lt-Col Magugu. Mr Du Plessis pressed W
O Mangate as to whether he had a choice to arrest or not, to which W
O Mangate responded
that he had a choice and that he arrested the
plaintiff based on the information at his disposal.
121.
W O Mangate testified that the plaintiff was not considered armed and
dangerous the only connection
being that he helped his cousin.
122.
At this point it is apposite to point out that W O Mangate did not
impress as a witness. He gave
contrived explanations as to the dates
on the statements referred to above. He at times did not answer
questions directly and he
was also not above tailoring his answers to
try and deal with the difficulties he found himself in under
cross-examination.
123.
That is substantively what emerged from the cross-examination of W O
Mangate.
124.
Turning now to consider the four jurisdictional facts required to be
established for a defence
based on section 40(1)(b) of the CPA.
Firstly, both Lt-Col Magugu and W O Mangate agree that it was in fact
W O Mangate who was
the arresting officer. It is common cause between
the plaintiff and the defendant that W O Mangate is a peace officer
in the sense
contemplated by section 1 of the CPA. Accordingly, the
first jurisdictional fact is established.
125.
The second jurisdictional fact is intertwined with the fourth
jurisdictional fact, because for
the purposes of section 40(1)(b) of
the CPA the only suspicion that is relevant is one that is based on
reasonable grounds. Both
Lt-Col Magugu and W O Mangate testified that
they suspected that plaintiff had aided his cousin. Whether this
suspicion was based
on reasonable grounds or not will be considered
later in this judgment.
126.
The third jurisdictional fact to be established by the defendant must
be that the suspect, in
this case the plaintiff is suspected of
committing an offence which is referred to in Schedule 1 of the CPA.
127.
What the evidence of Lt-Col Magugu and W O Mangate establishes is
that the information prior
to the arrest of the plaintiff available
to them was that a vehicle whose registration number was traced back
to the plaintiff
was seen transporting the plaintiff’s cousin
Katlego Moje to and from the house of Victor Might in Postmasburg.
This was
the only information available to them on which a suspicion
could be formed. Both Lt-Col Magugu and W O Mangate confirmed in
their
evidence that the plaintiff could not be linked to the
principal crime scene where the relevant robbery occurred.
128.
At most on these facts the plaintiff could have only committed the
crime of being an accessory
after the fact or possibly obstructing
the course of justice. Neither of those crimes are specifically
included in Schedule 1 of
the CPA. In these circumstances such crimes
can only be considered a Schedule 1 offence if the defendant can
establish that there
are reasonable grounds to believe that if
convicted the plaintiff would have been sentenced to a sentence
exceeding six months
imprisonment without the option of a fine. The
defendant did not even attempt to deal with this aspect which is
required by the
defence raised by the defendant.
129.
The defendant tried to avoid this question inherent in this third
jurisdictional fact by referring
to the advice allegedly received
from the office of the DPP. The advice allegedly given by the office
of the DPP was to charge
the plaintiff with armed robbery. There are
several difficulties and problems inherent in the defendant’s
version of this
alleged advice from the office of the DPP. The first
and most glaring problem for the defendant is that on the evidence of
Lt-Col
Magugu he only phoned the office of the DPP after plaintiff
had been arrested on the evidence of W O Mangate. Accordingly, this
advice from the DPP could not have been available when the plaintiff
was in fact arrested.
130.
Although Lt-Col Magugu was initially ambiguous as to whether the
plaintiff was arrested before
or after his interview of the
plaintiff, later in his evidence he said that the time and
circumstances of the arrest would be
facts known to the
arresting officer. Lt-Col Magugu’s evidence on this point was
that W O Mangate was the arresting officer.
W O Mangate was adamant
in his evidence that the arrest took place before the plaintiff was
interviewed by Lt-Col Magugu.
131.
The alleged advice from the office of the DPP is problematic on
several different levels. Lt-Col
Magugu does not disclose who he
allegedly talked to at the office of the DPP. Then the earliest he
could have phoned the office
of the DPP would have been after 11pm on
the night of 4 May 2019. It is inherently improbable that he would
find anyone at the
office of the DPP at that hour. If the office of
the DPP was phoned the next day during business hours it is more
problematic for
the defendant as it is then further removed from the
actual arrest.
132.
Finally, Lt-Col Magugu testified that the charges were withdrawn
against the plaintiff by the
representative of the DPP who ran the
criminal trial. This must have taken place prior to the plaintiff
being asked to plead to
the charge, otherwise plaintiff would have
been entitled to a verdict. Lt-Col Magugu’s evidence was the
charges were provisionally
withdrawn pending the outcome of the
criminal trial. There is only one credible reason why a prosecutor
would withdraw charges
in those circumstances.
133.
All of this shows that the alleged advice from the office of the DPP
was nothing more than a
red herring obtained ex post facto
that was drawn across this courts path several times to confuse and
obfuscate rather than establish a bona fide defence.
134.
Clearly, there was no credible evidence available on the evidence of
both Lt-Col Magugu and W
O Mangate to suspect that plaintiff had
committed a schedule 1 offence. When asked about this both witnesses
simply referred to
the seriousness of the offence. This could only
have been a reference to the robbery itself. However, both witnesses
were unable
to link the plaintiff to the robbery itself and admitted
that plaintiff was not on the scene of the robbery and they admitted
that
they had no grounds to believe the plaintiff received any of the
proceeds of the robbery. The high-water mark of the information
that
they eventually obtained against the plaintiff, even if it was
obtained after the arrest was that plaintiff took his cousin
Katlego
to Pampierstad after the robbery. As already set out above this in
and of itself does not establish that a Schedule 1 offence
might have
been committed by the plaintiff. In the circumstances, the defendant,
on whom the onus rests, has failed to establish
the third
jurisdictional fact.
135.
Turning now to the fourth jurisdictional fact which the defendant
needs to establish to rely
on the defence contemplated by section
40(1)(b) of the CPA being that the suspicion entertained rests on
reasonable grounds. On
the facts of this case, all the concerns
raised in respect of the third jurisdictional fact set out above
apply equally to the
fourth jurisdictional fact that must be
established by the defendant. In these circumstances, it cannot be
said that the suspicion
entertained by either of the defendant’s
witnesses rested on objectively reasonable grounds. In these
circumstances, the
defendant has failed to establish the fourth
jurisdictional fact.
136.
Insofar as the discretion of the arresting officer might be relevant
in these circumstances,
it is clear from the evidence of W O Mangate
that he simply carried out an instruction given by Lt-Col Magugu.
There is no evidence
that W O Mangate made any attempt to exercise a
discretion of his own as to whether in the circumstances he should
effect an arrest.
In these circumstances, clearly W O Mangate did not
exercise a discretion at all.
137.
For all of these reasons this court concludes that the defendant has
not established that the
arrest of the plaintiff was lawful as
contemplated in section 40(1)(b) of the CPA. Accordingly, such arrest
was unlawful and the
defendant is liable to pay damages to the
plaintiff in respect of such unlawful arrest.
138.
It follows from the unlawful arrest that the detention is also
unlawful. As can be seen from
the extract of the pleadings quoted
above, the plaintiff pleaded that the present defendant being the
Minister of Police was responsible
both for his unlawful arrest and
unlawful detention up until 16H00 on the 12 November 2019. As can
also be seen from the extract
of the pleadings quoted above the
defendant effectively denied the allegation that defendant was
detained until the date and time
set out above.
139.
Defendant
accepted the onus in the pre-trial conference to prove the legality
of both the arrest and the detention. This is consonant
with what the
law requires. The plaintiff pleads he was detained until 12 November
2019. Defendant in his plea admits detention
and denies the remaining
allegations in paragraph 6 of the Particulars Of Claim. The plaintiff
gives no evidence to confirm such
date. The defendant does not
concede it. The defendant on whom the onus rests also adduces no
evidence to show when the plaintiff
was brought before a magistrate
who authorised the further detention. The detention would be lawful
from the time a court authorises
it.[16]
There is a further difficulty we know there was a bail application
which was refused. However, we also do not know the date of
the bail
application. Nor do we know if it was opposed on reasonable grounds.
140.
The upshot of this is that both the plaintiff and the defendant are
guilty of lapses in the way
both prepared and presented their
respective cases. The defendant argues that it was never plaintiff’s
case that he was not
brought before court within 48 hours therefore
Mr Davis argues I should only find the detention unlawful for 48
hours beyond the
arrest. The defendant cannot shift the onus in this
manner, it was and remains incumbent upon the defendant to adduce
evidence
that the plaintiff was indeed brought before court at a
specified date and time and that the further detention was indeed
authorised
by the court.
141.
By the same token the plaintiff knew that the date and time of the
plaintiff’s release
was placed in dispute in the pleadings,
plaintiff ought to have placed some evidence before the court to
substantiate this. This
plaintiff failed to do. Even though merits
have been separated from the quantum by agreement this court is
trapped and has to consider
the merits in regard to the duration of
the unlawful detention of the plaintiff. In these circumstances this
matter could not simply
be decided on where the onus lay.
142.
The remaining issue is the issue of costs. The plaintiff was
substantially successful and there
is no reason to deprive the
plaintiff of his costs. Considering the nature of the claim and the
issues raised, in my view scale
B is the appropriate scale on which
costs should be ordered.
143.
Plaintiff also asks this court to award the costs of the postponement
on the 14 and 15 March
2023. However, I see from the relevant order
that those costs were ordered to be in the cause.
In
the circumstances the following order is made:
1) The
arrest of the plaintiff was unlawful.
2) The
subsequent detention of the plaintiff was also unlawful.
3) The
duration of the unlawfulness of the subsequent detention is to be
determined at the proceedings to establish
the quantum of the
plaintiff’s claim.
4) The
defendant shall pay the established or agreed damages flowing from
the said unlawful arrest and detention.
5) The
defendant shall pay the party-and-party costs up to this point on
scale B.
6) The
proceedings in relation to the quantum of plaintiff’s claim are
postponed sine die for a date to be arranged with the
registrar.
L.
G. Lever
Judge
Northern
Cape Division, Kimberley
Representation:
For
the Plaintiff:
ADV HC DU PLESSIS
Instructed
by:
C/O PGMO ATTORNEYS INC
For
the Defendant:
MR C DAVIS
Instructed
by:
OFFICE OF THE STATE ATTORNEY
Date
of Hearing:
26 February 2024
Date
of Judgment:
30 May 2025
[2]
2011 (5) SA 367 (SCA).
[4]
Sekhoto., above., p. 373 at para [6].
[6]
Sekhoto., above., at p 377 para [22].
[7]
Sekhoto., above., at p. 379 para [28].
[8]
Sekhoto., above., at p. 379 para [29].
[9]
Sekhoto., above., at p. 382 para [38].
[10]
Sekhoto., above., at p. 382 para [39].
[11]
Sekhoto., above., pages 382 – 383 at paras [40] and [41]. The
reference to Hyundai
as it appears in the quoted passage is a reference to [2000] ZACC 12; 2001 (1) SA
545 (CC) at paras [21] to [26].
[12]
Sekhoto., above., pages 383 – 384 para [44].
[14]
Barnard’s case., above at para [48].
[15]
Sekhoto case., above., pages 384 and 385 paras [48] and [49].
[16]
Sekhoto., above., at para [42].
Source link