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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: CA304/2018

Date heard: 9 September 2019

Date delivered: 17 September 2019

In the matter between:

SIVUYILE BRANSBY MQUQU                                                                         Appellant

and

MINISTER OF POLICE                                                                                    Respondent

JUDGMENT

LOWE, J

INTRODUCTION

[1]          This is an appeal with the leave of the trial Court (Huisamen AJ) against the dismissal of Appellant’s claim (Plaintiff a quo) based on unlawful arrest and detention.  Appellant was arrested by the South African Police Service (SAPS) on Thursday, 27 October 2016 near Mdantsane and detained at King William’s Town until his release on Monday, 31 October 2016, due apparently to there being “insufficient evidence”.

[2]          The crime of which he was suspected and for which he was arrested was theft by false pretences.  

[3]          Respondent contended that the arrest was lawful in terms of Section 40(1)(b) of the Criminal Procedure Act, 1977 (the CPA), contending further that the detention thereafter was lawful in terms of Section 50(1)(a)(i) of the CPA.

[4]          The Respondent’s evidence is well and correctly summarised by the Court a quo as follows:

“[8]       The first witness for the defence was the arresting officer Detective Constable Vuyokazi Dyamdeki.  She testified that, during the afternoon of Thursday 27 October 2016, she received a phone call from Ms Tshaka, the complainant in a fraudulent scam (referred to by the witness as a “robbery”), which had occurred on 31 August 2016.  Tshaka informed Dyamdeki she saw the people who had robbed her walking in a street in King William’s Town.

[9]        By way of background Dyamdeki explained that Tshaka was robbed on 31 October 2016, by a group of four (4) women, of her cellphone, make-up bag, wallet and cash.  The robbery occurred by means of an elaborate scam in which the 4 perpetrators persuaded Tshaka, for reasons which are not necessary to set out fully herein, to temporarily part with her money and possessions, leaving same in their possession.  She was then persuaded to go to a particular shop where she was led to believe that she could buy certain goods on substantial discount.  On her return the women had disappeared, taking with them her money, phone and possessions.  According to witnesses who saw the perpetrators leaving, they drove off in a gold coloured Verso (7 seater) motor vehicle, driven by an african male of light complexion.

[10]      Because her phone was still on, Tshaka kept on phoning the perpetrators (utilising another phone), pleading with them for the return of her possessions.  During one of these calls, Tshaka was advised by the person who answered to go to a certain car wash business in King William’s Town to collect her possessions.  When she arrived there, she found her wallet with all her cards inside, but cash of some R500,00 was missing.  The wallet was, according to witnesses, dropped off by a woman who had arrived in a gold coloured Verso, which was again driven by a male of light complexion. 

[11]      According to Dyamdeki she and her colleagues had been investigating a number of similar cases in the King William’s Town area.

[12]      Tshaka also informed Dyamdeki over the phone that she had just witnessed these women perpetrating the same scam on another victim.  She saw this victim, an elderly lady, handing her handbag to the women, whereafter they got into a gold Verso which was again driven by a male person. 

[13]      Dyamdeki, accompanied by Constable Niki, also a female police officer, rushed to meet Tshaka in an unmarked police vehicle.  They were followed by Warrant Officer Maya in a marked police vehicle. 

[14]      When they arrived at the scene the Verso was just departing.  Tshaka got into Dyamdeki’s vehicle and they followed the Verso.  They drove out of King William’s Town, on the N2 to East London.  At that stage the marked vehicle, driven by W/O Maya, turned back.  When Dyamdeki caught up with the Verso while later she flickered her lights to signal to the driver of the Verso to stop, but he carried on along the N2, increasing his speed.  Dyamdeki stayed in pursuit, keeping a safe distance and called for back-up.

[15]      Near Berlin the Verso suddenly stopped next to the road.  Dyamdeki noticed that the occupants threw a plastic bag out of the Verso, before driving off again.  She did not confront the occupants of the vehicle when it stopped because she was still waiting or back-up.  Back-up later arrived and the Verso was stopped near Fort Jackson, East London. 

[16]      The occupants of the Verso alighted from the vehicle.  The plaintiff was the driver.  The vehicle was searched by the police officers at the scene.  Tshaka’s cellphone was found in the cubby hole of the Verso.  Her make-up bag was also found in possession of one of the female passengers.  A number of other handbags were also found in the vehicle.

[17]      Dyamdeki asked the plaintiff what had been thrown out of the vehicle near Berlin.  He told her it was a handbag.

[18]      Dyamdeki and Tshaka thereafter went back to the place where the plastic bag was thrown out along the N2. They located the bag.  It contained, inter alia, a handbag, which later turned out to be the handbag of the elderly victim who had been scammed a while earlier in King William’s Town, as witnessed by Tshaka.  The victim’s identity documentation was also found in the plastic bag. 

[19]      Dyamdeki suspected the plaintiff to have been part of the scam perpetrated by his passengers.  He also matched previous descriptions of the get-away driver and the Verso matched the description of the get-away vehicle which was used in Tshaka’s scam.  Dyamdeki therefore arrested the plaintiff without a warrant.  The plaintiff was taken to the King William’s Town Police Station where he was detained pending further investigation.  On Monday 31 October 2016 the plaintiff was taken to the Magistrate Court in King William’s Town where he was later released.”

[5]          I should add significantly that the role played by the gold coloured Verso motor vehicle referred to above, driven at least at the time of arrest by Appellant, was involved in the theft from Tshaka, driven then by what the trial Judge set out as “an African male of light complexion”.  When Tshaka received her wallet at a petrol station at a later stage a witness told her this was dropped off by a lady in a gold Verso with driver fitting the same description. 

[6]          Appellant was later arrested as driver of a gold Verso, the driver being of similar description to that set out above.  The significance of all this is to make Appellant’s innocent version of no knowledge of the theft extremely difficult to sustain.  This especially so having regard to:

[6.1]     The vehicle description.

[6.2]     The driver description.

[6.3]     The fact that a cellphone was found in the cubbyhole of the gold Verso bearing pictures of the driver (Appellant) with one of the relevant passengers clearly taken at an earlier time.

[6.4]     The fact that the driver stopped along the road to East London and a bag from the theft was thrown out.

[6.5]     The fact that when Respondent’s case was led the existence of the cellphone in the cubbyhole (and picture) was not denied, being left unchallenged. 

[7]          The learned trial Judge quite correctly found Dyamdeki and Tshaka to be good and reliable witnesses, both unshaken in cross-examination.

[8]          Tshaka established that the cellphone picture on the phone found in the cubbyhole was most certainly Appellant and one of his passengers demonstrating on the probabilities that they were well known to each other.

[9]          Against this Appellant’s evidence was that he was driving a gold coloured Toyota Verso on 27 October 2016, he operating an informal taxi business.  The gold Verso belonged to one Mawethu.  He had been using the vehicle for about 3 weeks prior to the date of his arrest.  On the particular day he left Mthatha early in the morning with passengers bound for East London.  At East London he picked up new passengers bound for Grahamstown.  When he neared Peddie, on his way to Grahamstown, the Verso developed an oil problem.  He decided to turn back.  He dropped his passengers at Peddie and picked up five (5) new female passengers who needed a lift to East London.   In King William’s Town these passengers wanted to buy food.  Appellant stopping for 15-30 minutes at Shoprite.  The passengers later returned, got back into the Verso and they continued on their journey to East London.  Near Berlin the passengers asked Appellant to pull over, one of the passengers opening a window.  The window was then closed again and Appellant was instructed by his passengers to drive on.  According to Appellant no-one got out of the vehicle.  Some distance later Appellant was stopped by the police and arrested.  He told the police he did not know any of his passengers.  According to him nothing suspicious was found in the vehicle.  He also did not notice anything being thrown out of the vehicle when his passengers asked him to stop near Berlin.  He denied that Tshaka’s cellphone was recovered from the cubbyhole of the Verso and stated that it was recovered from one of his passengers later.

[10]       It is apparent from the record that Appellant was far from an impressive witness, struggling under cross-examination, evasive, unreliable and unable to explain the many discrepancies between his version and that put, the cellphone issue, the reason for the cellphone picture, that he did not see anything thrown out when the vehicle stopped along the road, and the presence of the gold Verso (at the previously mentioned linking events).  

[11]       I agree with the learned Judge’s detailed criticism of Appellant’s evidence.

[12]       The conclusion that on the probabilities Appellant was part of the crime and events has overwhelming support in the acceptable evidence. 

THE LEGAL ISSUES AND APPROACH TO APPEALS

[13]       As is well known where, as in this case, the Court’s factual and credibility findings are challenged, the principles as set out in R v Dhlumayo and Another [1] are applied.   In summary the judicial officer at trial has seen and heard the witnesses and consequently an Appeal Court will be slow to upset the findings made both on the facts and credibility.  Where there is no misdirection of fact the presumption is that the conclusion is correct and this will only be reversed if the Court is convinced that it is wrong.  Even if the Appeal Court is in doubt as to the conclusion’s correctness, it will be upheld.   Only in the face of a misdirection of fact, or other facts or probabilities overlooked, will the Appeal Court come to its own conclusion.   To succeed it must be shown that there was some miscarriage of justice or violation of principle of law or procedure. 

[14]       In this matter I am satisfied that the Court a quo’s findings on fact and credibility have not by any means been shown to have been such as to warrant interference and are presumed thus to be correct. 

[15]       In Duncan v Minister of Law and Order [2] it was held that the jurisdictional facts for a Section 40(1)(b) of the CPA 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[3].  

[16]       The suspicion that must be held must, in order to be a reasonable one, be objectively sustainable, in the sense that it must rest on reasonable grounds.[4]

[17]       The jurisdictional fact for an arrest without warrant in terms of these provisions remains a suspicion.  In Mabona & Another v Minister of Law and Order and Others [5], the following was said in relation to how a reasonable suspicion is formed:

“Would a reasonable man in the second defendant's position and possessed of the same information have considered that there were good and sufficient grounds for suspecting that the plaintiffs were guilty of  conspiracy to commit robbery or possession of stolen property knowing it to have been stolen? It seems to me that in evaluating his information a reasonable man would bear in mind that the section authorises drastic police action. It authorises an arrest on the strength of a suspicion and without the need to swear out a warrant, ie something which otherwise would be an invasion of private rights and personal liberty.  The reasonable man will therefore analyse and assess the quality of the information at his disposal critically, and he will not accept it lightly or without checking it where it can be checked. It is only after an examination of this kind that he will allow himself to entertain a suspicion which will justify an arrest. This is not to say that the information at his disposal must be of sufficiently high quality and  cogency to engender in him a conviction that the suspect is 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.”[6]

[18]       In Minister of Police and Another v Du Plessis[7] Navsa ADP stated as follows:

“[14] Police bear the onus to justify an arrest and detention. In Minister of Law and Order and Others v Hurley and Another 1986 (3) SA 568 (A) at 589E – F the following is stated:

'An arrest constitutes an interference with the liberty of the individual concerned, and it therefore seems to be fair and just to require that the person who arrested or caused the arrest of another person should bear the onus of proving that his action was justified in law.'

[15] Our new constitutional order, conscious of our oppressive past, was designed to curb intrusions upon personal liberty which has always, even during the dark days of apartheid, been judicially valued, and to ensure that the excesses of the past would not recur.  The right to liberty is inextricably linked to human dignity. Section 1 of the Constitution proclaims as founding values, human dignity, the achievement of equality and the advancement of human rights and freedoms. Put simply, we as a society place a premium on the right to liberty.

[16] In Zealand v Minister of Justice and Constitutional Development and Another [2008] ZACC 3; 2008 (2) SACR 1 (CC) (2008 (4) SA 458; 2008 (6) BCLR 601) at para 24 the following is said: 

 'The Constitution enshrines the right to freedom and security of the person, including the right not to be deprived of freedom arbitrarily or without just cause, as well as the founding value of freedom. Accordingly, it was sufficient in this case for the applicant simply to plead that he was unlawfully detained. This he did. The respondents then bore the burden to justify the deprivation of liberty, whatever form it may have taken.'

[17] Justification for the detention after an arrest until a first appearance in court continues to rest on the police. Counsel for the appellants rightly accepted this principle. So, for example, if shortly after an arrest  it becomes irrefutably clear to the police that the detainee is innocent, there would be no justification for continued detention.”

[19]       In Minister of Safety and Security v Van Niekerk[8] the Court held that nuanced guidelines exist as to when to arrest without a warrant and when  not.  This must be read in the light of MR v Minister of Safety and Security [9] and Minister of Safety and Security v Sekhoto and Another [10].

[20]       All the above is of course subject to the discretion to arrest as explained in MR supra [11].  In short police officers are never obliged to effect an arrest, when all the jurisdictional factors are present, in the conduct of their arrest discretion[12]. 

[21]       It is trite that police officers purporting to act in terms of Section 40(1)(b) of the Act should investigate exculpatory explanations offered by a suspect before they can form a reasonable suspicion for the purpose of lawful arrest[13].   It is expected of a reasonable person to analyse and weigh the quantity of information available critically and only thereafter, and having checked what can be checked, will he form a mature suspicion that will justify an arrest[14].   In this matter, bar a simple denial of involvement at the time of the arrest, there was no exculpatory version which could then have been further checked before arrest. 

THE CONCLUSION

[22]       In my view, on the objective suspicion test as set out above the acceptable facts establish an entitlement to arrest in the manner which eventuated.

[23]       In respect of the period of arrest no alternative cause of action was pleaded. 

[24]       In my view the learned trial Judge was perfectly correct in his approach to the matter, and in his conclusion.

[25]       In the result:

The appeal is dismissed with costs.   

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M.J. LOWE

JUDGE OF THE HIGH COURT

BLOEM, J:

I agree.

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G.H. BLOEM

JUDGE OF THE HIGH COURT

CROUSE, AJ:

I agree.

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E CROUSE

JUDGE OF THE HIGH COURT (ACTING)

Obo the Appellant:  Adv M Rili

Instructed by:            MK Majavu & Associates, c/o Caps Pangwa & Associates, Grahamstown

Obo Respondent:    Adv Z M Maseti

Instructed by:            State Attorney, c/o Mili Attorneys, Grahamstown

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