IN THE HIGH COURT of south africa
GAUTENG LOCAL DIVISION, JOHANNESBURG

Case No. 12697/2019 and 12698/2019

REPORTABLE: No
OF INTEREST TO OTHER JUDGES: No
REVISED: Yes
Date: 2021-12-07

In the matter between:

NKOSINATHI MANDLAKAYISE HADEBE	 First Plaintiff

MKHUMBULENI MKHIZE	Second Plaintiff

and

THE MINISTER OF POLICE	First Defendant

MEMBERS OF SOUTH AFRICAN POLICE SERVICES	Second Defendant

JUDGMENT

DU PLESSIS AJ:
1.	The actions of the first and second plaintiffs were consolidated as they arose from the same incident. Both claimed damages for unlawful arrest and detention, as well as assault, contumelia, deprivation of freedom of movement and association and discomfort from the Minister of Police who is cited as the first defendant. 

2.	The plaintiffs claimed R1 000 000.00 as damages for the arrest, detention, deprivation of freedom of movement and association and discomfort and R400 000.00 for the unlawful assault. At the start of the trial Adv Khumalo, acting for the plaintiffs, indicated that the plaintiffs no longer proceed with the claim for assault as there was no evidence for such a claim.

3.	Although the second defendant was cited as “members of the South African Police Services”, it is clear that the claim was against the first defendant based on vicarious liability. Judgment can, in any event, not be granted against a group cited as such as it would mean that every member of the South African Police Service would become liable. The names of the arresting officers were known to the plaintiff but they were never cited as parties to the action. 

4.	The alleged unlawful arrest and detention occurred on 21 May 2017 at or near Berea within the jurisdictional area of Hillbrow Police Station, in the area of Johannesburg.

5.	The arresting officers were Sergeant Makola Jack Phooko (“Phooko”) as well as Sergeant Makondelela Mungoni (“Mungoni”) who were in full police uniform and who travelled in a marked police motor vehicle and were acting within the course and scope of their employment.

6.	The plaintiffs were granted bail and released after spending 37 (thirty seven) days in detention. The charges were eventually withdrawn against both plaintiffs following the complainant’s failure to attend court.

7.	The plaintiffs were arrested and initially detained on the basis of an alleged armed robbery which was reported to the arresting officers by a Mr Desire Prince Mthembu, (the complainant), who pointed out the plaintiffs to the officers as the suspects who robbed him of his cell phone and house keys while using a firearm.

8.	The issues for determination in this matter are therefore:

8.1.	Whether the arrest was lawful within the contemplation of s 40(1)(b) of the Criminal Procedure Act 51 of 1977 (the 'CPA');

8.2.	whether or not there was a reasonable suspicion formed on the part of the arresting officers in order to effect the arrest;

8.3.	whether the detention was unlawful; and

8.4.	whether the further detention of the plaintiffs was as the result of the failure by the investigating officer, Warrant Officer M. Ephraim Marakalala, to comply with the instructions of the public prosecutor and that of his commander and if so, whether the defendant is liable for such failure;

8.5.	if it is found that the arrest and detention was unlawful, the issues of quantum and costs should be determined.

9.	It was common cause that both plaintiffs were arrested without a warrant, which power is regulated by the provisions of section 40 (1) (b) of the Criminal Procedure Act 51 of 1977 (“the CPA”). The CPA provides that a peace officer may without warrant arrest any person, inter alia, whom he reasonably suspects of having committed an offence referred to in Schedule 1.

10.	As an arrest without a warrant is prima facie unlawful, the defendant bears the onus to prove that the arrest was lawful and/or justified under the provisions of the CPA. 

11.	The jurisdictional facts which must exist for a defence in terms of section 40 (1) (b) to succeed were set out in the matter of Duncan v Minister of Law and Order. They are:

11.1.	The arrestor must be a peace officer;

11.2.	The arrestor must entertain a suspicion;

11.3.	The suspicion must be that the suspect (the arrestee) committed an offence referred to in Schedule 1; and 

11.4.	The suspicion must rest on reasonable grounds. In order for the suspicion to be a reasonable one, it must be objectively sustainable.

12.	The defendants called three witnesses, namely the arresting officers Phooko and Mungoni and the investigating officer Warrant Officer Matsobane Ephraim Marakalala (“Marakalala”). It bears mentioning that the investigating officers corroborated each other in all material respects.

13.	The facts that emerged from their evidence were the following:

13.1.	They were on night duty attending to complaints and patrolling the area;

13.2.	They needed to drop another complainant in a different matter at Berea when they were approached by a gentleman who introduced himself as the complainant;

13.3.	The complainant pointed out two gentlemen who were passing not far away from them (+/- ten meters away) and informed them that they had just robbed him of his cell phone and keys;

13.4.	He further informed the two police officers that one of the suspects (wearing a red golf-shirt, later known to them as Hadebe, the first plaintiff herein) was carrying a firearm and had pointed the firearm at him during the robbery whilst the other suspect had searched him;

13.5.	The two police officers followed the suspects and caught up with them having come from the front;

13.6.	The two police officers alighted from their vehicle, pointed their firearms at the two suspects and ordered them to raise their hands;

13.7.	Both plaintiffs were searched and a firearm was seized from the suspect wearing a red golf-shirt, the first plaintiff;

13.8.	Nothing else was found on either of the two plaintiffs after they were both searched;

13.9.	They were informed by another gentleman who was seated in a car in the immediate area that he had witnessed the second plaintiff take out a cellphone and that he had thrown it away. He had also witnessed that a passer-by had picked the cellphone up and then ran into an abandoned building without lights and had disappeared;

13.10.	The suspects were arrested and taken to the police station. On arrival they requested to speak to the complainant, apologised to him and begged him not to lay charges against them;

13.11.	The complainant proceeded with the complaint which gave the arresting officers no option but to have a docket opened and to detain the plaintiffs as suspects in the armed robbery;

13.12.	The investigating officer, Marakalala, testified that the complainant could not be traced which led to him deposing a statement to that effect, and charges were eventually withdrawn against both the plaintiffs.

14.	It was common cause that the arresting officers were peace officers, that they entertained a suspicion and that the crime which the plaintiffs were suspected to have committed was a Schedule 1 offence. In this regard it was argued before me by Adv Khumalo for the plaintiffs that the offence was in fact a Schedule 6 offence and therefore did not fall within the provisions of Schedule 1. 
 
15.	Schedule 6 is, of course, not relevant to section 40 of the CPA. That much is clear when regard is had to the heading of the schedule, which refers to different sections. The schedule that refers to section 40 is Schedule 1. Although Schedule 1 only refers to robbery, it must encompass the more serious offence of robbery with aggravating circumstances. To find the contrary will lead to absurd results, as Schedule 1 also contains more serious offences like murder. It will mean that a peace officer can arrest someone without a warrant for suspicion of committing robbery but not if a weapon was used during such robbery. Insofar as it is necessary I therefore find that the offence in casu falls within the ambit of Schedule 1. 

16.	The plaintiffs’ case was that the suspicion held by the arresting officers was not reasonable. This is so as the arresting officers did not interrogate the plaintiffs or provided them with an opportunity to explain their version of events to them. When confronted with this in cross-examination, Phooko said that he expected them to deny the allegations of the complainant.

17.	This must be correct as it would not reasonably be expected of a suspect in those circumstances to do anything else. This should also be seen in light of the evidence that the plaintiffs pleaded with the complainant not to lay charges against them, which corroborated his version to the arresting officers.

18.	In Mabona v Minister of Law and Order and Others, the following was said in relation to how a reasonable suspicion is formed: 

“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 in fact guilty. The section requires suspicion but not certainty. However, the suspicion must be based upon solid grounds. Otherwise, it will be flighty or arbitrary, and not a reasonable suspicion.”

19.	In this case the complainant informed the arresting officers of the fact that he was robbed at gunpoint, pointed out the plaintiffs as the suspects who robbed him and informed the officers that the first plaintiff who was wearing a red golf shirt at the time was the one with a weapon. On searching the first plaintiff they found a weapon on him, which weapon was in a holster on his side.

20.	The weapon could thus not be seen when the complainant made his allegations. It was reasonable for them to form the suspicion, on searching the plaintiffs and finding the weapon which confirmed the complainant’s version, that the plaintiffs had committed an offence in Schedule 1. Such a suspicion rested on solid grounds.

21.	In Minister of Safety and Security v Sekhoto the court dealt as follows with the purported unconstitutionality (the fifth jurisdictional element) of lawful arrests that was filtering through from various decisions of the High Court:

“It could hardly be suggested that an arrest under the circumstances set out in s 40(1)(b) could amount to a deprivation of freedom which is arbitrary or without just cause in conflict with the Bill of Rights. A lawful arrest cannot be arbitrary.”

22.	The first plaintiff was the only witness called on behalf of the plaintiffs. I found this peculiar as his version was never put to the defendant’s witnesses in circumstances where their evidence called for an answer. I will deal with the inference to be drawn from the failure to call the second plaintiff later.

23.	On the first plaintiff’s version, the complainant in fact attempted to rob them first. He had a knife on him and threatened the plaintiffs therewith. The first plaintiff then produced his firearm, whereafter he disarmed the complainant and threw away the knife. The complainant ran away and he was surprised when the arresting officers arrived thereafter with the complainant to arrest them.

24.	The first plaintiff furthermore testified that the arresting officers assaulted them to such an extent that they had visible injuries.

25.	This version is inherently improbable and can be rejected out of hand. As stated above, this version was never put to any of the defendant’s witnesses and it contains the following improbabilities:

25.1.	That a single suspect attempted to rob two young persons with a knife;

25.2.	That the knife was conveniently thrown away by the first plaintiff;

25.3.	That the complainant, as the would-be robber, would thereafter summon the police to lay a charge of robbery against the plaintiffs, who were in fact the victims;

25.4.	That the plaintiffs never considered laying a charge against the complainant;

25.5.	That a victim of an intense assault by the police resulting in visible injuries would fail to report the assault to other police officers and open a case;

25.6.	That the plaintiffs wanted to give a statement to the police upon arrest, yet when asked to give a formal statement in the police holding cells, they stated they would give a statement in court; 

25.7.	That they requested the complainant in the charge office not to lay a charge against them.

26.	I pause to mention the following: The denial that the plaintiffs requested the complainant not to lay a charge against them, or that they had spoken to him at all, was also never put to the defendant’s witnesses. I was very surprised to hear the first plaintiff’s evidence to the contrary, having accepted that it would have been denied in cross-examination of the defendant’s witnesses if it was untrue. 

27.	The second observation is that the first plaintiff did not make a favourable impression on me as a witness. He had the benefit of an interpreter but it became clear from observing him that he could understand the questions put to him. He therefore had ample time to consider his answers. Nevertheless, he was sometimes vague and hesitant when answering questions. 

28.	I therefore reject the evidence of the first plaintiff insofar as it contradicted the evidence of the arresting officers. Although in some cases it is not necessary to call a second available witness just to corroborate another witness’ evidence, in my view this matter called for the second plaintiff to give evidence. This is inter alia so because of the strange version provided by the first plaintiff and the fact that the arresting officers corroborated each other in all material respects.

29.	If there was any doubt as to the veracity of the first plaintiff’s evidence, I would have drawn an adverse inference from the fact that the second plaintiff was not called to corroborate it. Because of my rejection of his evidence on both credibility and the inherent probabilities, such an inference is not necessary in this case. 

30.	I therefore find that the arresting officers acted reasonably in the circumstances and that they were justified in effecting the arrest in terms of section 40 (1) (b) of the CPA. The arrest was lawful and the plaintiffs claim in this regard must fail.

31.	It follows from this finding that the initial detention was also lawful. 

32.	To succeed on a claim for further detention and malicious prosecution a claimant must prove that:

32.1.	The defendant set the law in motion and that it instigated or instituted the proceedings;

32.2.	The defendant acted without reasonable and probable cause;

32.3.	The defendant acted with 'malice' (or animo iniuriandi) that is, with the intention to injure the plaintiff; and 

32.4.	The prosecution failed.

33.	The plaintiffs’ claim was that the continued detention was as a result of the failure by the investigating officer to take certain steps and conduct certain investigations as instructed by the commanding officer and the state prosecutor. Because of such failure, so it was argued, the plaintiffs remained in custody for a much longer period than would otherwise have been the case.

34.	It is correct that the investigating officer did not do everything that was required of him. He also did not impress me as a good witness. However, the continued detention was not in the control of the defendant. In this regard the following was said in Sekhoto: 

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

[44]	While the purpose of arrest is to bring the suspect to trial the arrestor has a limited role in that process. He or she is not called upon to determine whether the suspect ought to be detained pending a trial. That is the role of the court (or in some cases a senior officer). The purpose of the arrest is no more than to bring the suspect before the court (or the senior officer) so as to enable that role to be performed. It seems to me to follow that the enquiry to be made by the peace officer is not how best to bring the suspect to trial: the enquiry is only whether the case is one in which that decision ought properly to be made by a court (or the senior officer). Whether his decision on that question is rational naturally depends upon the particular facts but it is clear that in cases of serious crime – and those listed in Schedule 1 are serious, not only because the Legislature thought so – a peace officer could seldom be criticised for arresting a suspect for that purpose.”

35.	The arresting officers, and therefore the defendant, cannot be held liable for the plaintiffs’ continued detention. The cases referred to by Adv Khumalo do not assist in this regard, as in those matters either the initial arrest was unlawful, the police officers acted in a manner which was misleading or they concealed certain facts. In some cases the claim was against the Minister of Justice and Constitutional Development. They are therefore all distinguishable from the present matter. These cases are the following:

35.1.	Minister of Safety and Security v Tyokwana, where the police failed to fairly bring the full facts before court. The SCA stated that:

 ' ... Kani, as well as Muller, failed dismally to give a fair and honest statement of the relevant facts to the prosecutor and to bring all the relevant circumstances under the attention of the magistrate. On the contrary, they wilfully distorted the truth, thereby misleading the prosecutor and the magistrate with the result that the respondent was remanded in detention and refused bail, and remained in custody until his acquittal on 20 July 2009 .. .. 

35.2.	In Zealand v Minister of Justice and Constitutional Development, a claim for delictual damages for wrongful detention was considered and it was held that the detention of the plaintiff for the entire period of his incarceration was unlawful, in that s 12(1)(a) of the Constitution was unjustifiably and unreasonably violated .. In the court’s view the respondent has shown that the circumstances in which the appellant's employees instigated and persisted with his prosecution, amounted to an unjustifiable breach of s 12(1)(a) of the Constitution. This is sufficient to establish delictual liability on the part of the appellant for the full period of the respondent's detention from 2 October 2007 to 20 July 2009.' 

35.3.	Mahlangu and Another v Minister of Police, where the Constitutional Court referred to the matter of Woji v Minister of Police, as well as the matter of Zealand, and stated: 

'In Woji, the Supreme Court of Appeal followed Zealand. It held that the Minister was liable for post appearance detention where the wrongful and culpable conduct of the police had materially influenced the decision of the court to remand the person in question in custody. Its reasoning effectively means that it is immaterial whether the unlawful conduct of the police is exerted directly or through the prosecutor. If we are to give meaning to freedom as a foundational value of our Constitution and to the right to freedom and security of the person, we cannot allow the police to deprive people of their freedom by so simple a stratagem as behaving in the egregious manner in which they did here and then lying low and keeping quiet to see if anything will come to the rescue of the victims of their nefarious deeds. If we allow that to happen, then police - like they did before the advent of our democracy - will continue to ride rough shod over the freedoms of our people. So, generally in circumstances like the present public policy dictates that delictual liability must attach, lest we find ourselves in a situation where freedom as a constitutional value and the right to freedom and security of the person are devalued. The unlawful continued concealment by the police of the fact that the confession was obtained illegally therefore provides the applicants with a basis for holding the Minister delictually liable for the full detention period. ' 

36.	None of these facts are present in this matter. There was no suggestion that any of the arresting officers or investigating officer acted mala fide or with the intention to harm the plaintiffs. As stated above, the investigating officer was merely criticized for not taking certain steps, like verifying the addresses of the plaintiffs, sooner. That can hardly be described as unlawful conduct.
 
37.	The plaintiffs also relied on the matter of De Klerk v Minister of Police for their argument that it was not necessary to join the Minister of Justice and Constitutional Development and that I could grant judgment against the present defendant for the plaintiffs’ continued detention even though it fell outside the power of its employees. This argument was based on the following dictum from the Constitutional Court:

'The Minister of Justice and Director of Public Prosecutions might be jointly and severally liable with the Minister of Police, but it is sufficient for one of them to be sued for their proven delict for the applicant to succeed. A plaintiff may elect to sue only one person whose delict caused her harm, even if another person's independent delict also caused that same harm. It is not obligatory that all joint wrongdoers be sued in the same action. Where all joint wrongdoers have not been sued, a court is not barred from determining the liability, if any, of the party or parties before it.’

38.	This dictum is not authority for holding a governmental department liable for unlawful acts committed by another. It only means that the liability of the wrongdoer before the court should be determined and it can be held liable even though the unlawful conduct of another wrongdoer caused the same harm.

39.	I therefore find that the defendant cannot be held liable for the plaintiffs’ continued detention and that the claim in that regard should also be dismissed.

40.	For these reasons it is not necessary to determine the quantum of the plaintiffs’ claim.

41.	The last issue to be addressed is costs. In this regard Adv Khumalo relied on the principles set out in Biowatch Trust v Registrar, Genetic Resources, & others to argue that the plaintiffs should not be mulcted with an adverse order for costs, even in the event of them not succeeding with their claims. 

42.	He argued that the general principle in constitutional litigation between a private party and the state is that if the private party is successful, it should have all of its costs paid by the state, while, if unsuccessful, each party should pay its own costs.

43.	The factors to be taken into account when determining an award of costs were set out in the Biowatch-matter, cited with authority by the Supreme Court of Appeal in Khumalo v Twin City Developers:

“In the first place it diminishes the chilling effect that adverse costs orders would have on parties seeking to assert constitutional rights. Constitutional litigation frequently goes through many courts and the costs involved can be high. Meritorious claims might not be proceeded with because of a fear that failure could lead to financially ruinous consequences. Similarly, people might be deterred from pursuing constitutional claims because of a concern that even if they succeed they will be deprived of their costs because of some inadvertent procedural or technical lapse’

Secondly, constitutional litigation, whatever the outcome, might ordinarily bear not only on the interests of the particular litigants involved, but also on the rights of all those in similar situations. Indeed, each constitutional case that is heard enriches the general body of constitutional jurisprudence and adds texture to what it means to be living in a constitutional democracy.

Thirdly, it is the State that bears primary responsibility for ensuring that both the law and State conduct are consistent with the Constitution. If there should be a genuine, non-frivolous challenge to the constitutionality of a law or of State conduct, it is appropriate that the State should bear the costs if the challenge is good, but if it is not, then the losing non-State litigant should be shielded from the costs consequences of failure. In this way responsibility for ensuring that the law and State conduct are constitutional is placed at the correct door.”

44.	In Tebeila Institute of Leadership Education, Governance and Training v Limpopo College of Nursing and Another, the Constitutional Court emphasised and explained the Biowatch- principle when it stated the following:

“The Court in Biowatch set out the rationale for ruling that successful private litigants get their costs when litigating against organs of state but are not saddled with the state’s costs when losing. It explained that adverse costs orders have a chilling effect on parties seeking to assert constitutional rights. But it noted further implications, observing that “[m]eritorious claims might not be proceeded with because of a fear that failure could lead to financially ruinous consequences”. And it added, presciently for the arguments in this case, that—
“[s]imilarly, people might be deterred from pursuing constitutional claims because of a concern that even if they succeed they will be deprived of their costs because of some inadvertent procedural or technical lapse.”

45.	The Court also said the following:
“It is nearly six years since this Court handed down Biowatch. The applicant’s claim affords this Court a useful opportunity to restate the principles laid down in Biowatch and to emphasise the rationale behind them. In particular, the case serves as a reminder to judicial officers handing down costs orders that litigant successfully asserting their constitutional rights against state institutions should get their costs unless there are “carefully articulated and convincing” reasons to deprive them of those costs.’

46.	In Khumalo, the Supreme Court of Appeal dealt with the test for considering the award of cost in a constitutional litigation and stated the following:

‘It was stated in Lawyers for Human Rights v Minister in the Presidency & others, that the well-established test when considering whether to award a costs order against a private party in a constitutional litigation is whether the litigation in question was frivolous, vexatious or manifestly inappropriate. The court stated that ‘to be subject to an adverse costs order, the litigant’s conduct must be worthy of censure.’ In this matter, it is of significance that the appellants had tried to avoid litigating by sending a letter to the respondents’ attorneys and also to the third respondent. That letter was sent before the main eviction application was enrolled.’

47.	Adv Khumalo argued that this action is, for all intents and purposes, as a result of the defendants’ violation of the plaintiffs’ constitutional rights. It is on this basis that the court was asked to apply the Biowatch-principle.

48.	I am of the view that this argument is stretching the principle. This case is not a constitutional matter and was never brought as such. If this argument is accepted, it would mean that a state institution would never be able to recover costs in a claim for damages against it, even though such claim is eventually unsuccessful. This is so as any infringement of a right raises constitutional issues. That could never have been the intention of the Constitutional Court.

49.	The fact is that the plaintiffs were unsuccessful. I made a credibility finding against the first plaintiff and the second plaintiff never bothered to give evidence although he was available. The plaintiffs proceeded with their claim at their own risk. The mere fact that the prosecution of the charge against them was never completed and the charge was withdrawn, does not mean that the arrest and detention were unlawful.

50.	For all these reasons I am of the view that the costs should follow the result. I have a discretion in this regard and I cannot see why I should exercise my discretion against granting costs to the defendant.

51.	I accordingly grant the following order:

15.1.	The plaintiffs’ claims are dismissed.

15.2.	The plaintiffs are, jointly and severally, ordered to pay the first defendant’s costs.

D T v R DU PLESSIS
ACTING JUDGE OF THE HIGH COURT

This judgment was prepared and authored by Acting Judge du Plessis. It is handed down electronically by circulation to the parties or their legal representatives by email and by uploading it to the electronic file of this matter on Caselines. The date for hand down is deemed to be 7 December 2021

HEARD ON: 15, 16, 17 & 19 November 2021

DECIDED ON: 7 December 2021

For the Plaintiff: Adv B M Khumalo

Instructed by: Mamathuntsha Inc. Attorneys 

For the Defendants: Adv M Makhubele

Instructed by: State Attorney, Johannesburg