Lengope v Minister of Police and another
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Mongale AJ |
| Judgment Date | 29 May 2023 |
| Docket Number | 382/2019 |
| Hearing Date | 29 May 2023 |
| Court | North West High Court, Mafikeng |
Mongale AJ:
INTRODUCTION:
Before me is an action for damages instituted by the plaintiff against the first and second defendants. In Claim A, the plaintiff instituted
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an action against the Minister of Police, the first defendant herein, in which he claimed damages for unlawful arrest and detention and in Claim B, the plaintiff instituted an action against the National Director of Public Prosecutions, the second defendant, for malicious prosecution. The plaintiff has since withdrawn his claim against the second defendant and when this matter appeared before me for trial, it was only against the first defendant.
The parties have agreed to separate merits and quantum as per their pre-trial minutes dated 16 September 2022. At the trial of this matter only the issue of liability had to be determined by this Court, since this Court ordered that merits and quantum be separated in terms of Rule 33(4) of the Uniform Rules of Court.
In his opening address, Counsel for the plaintiff, Mr Maphutha, informed the Court that the only issue regarding the arrest of the plaintiff is its lawfulness. This was confirmed by Counsel for the first defendant, Mr Mmolawa. The plaintiff's claim for his alleged unlawful arrest and detention by the first defendant is from 08 February to 11 September 2017. The plaintiff has since passed away after the close of pleadings.
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EVIDENCE:
In order to prove the lawfulness of the arrest, Mr Mmolawa called Captain Carl Mokhutswane (The captain). His evidence can be briefly summarised as follows:
He is stationed at Hebron police station but in 2017 he was stationed in Klipgat. He has been in the employ of the first defendant for the past 20 years.
He was on stand-by duty on Wednesday 08 February 2017 at Klipgat police station and went to the Community Service Centre (CSC) to sign for the police dockets that were opened the previous day and the morning of the 8th February, to attend to them as it was the responsibility of the police officer on seven-day stand-by duty to attend to such dockets;
Among these dockets, there was one from Madidi village and the complainant in that matter was one Mr Chibogo. After perusing the docket, the captain called Mr Chibogo to enquire about his whereabouts in order to meet with him. Mr Chibogo gave the captain his address and the captain went to Mr Chibogo to interview him. Mr Chibogo confirmed that what is contained in his statement, is how he narrated it to the police at the CSC when he opened the case of assault against the plaintiff.
The captain asked Mr Chibogo where he was injured and he told the captain that it was on his left arm, which according to the captain's observation, was swollen. The arm also had an open wound that showed that it bled. The captain asked him who inflicted those injuries to him and he said it was someone known as "Blof", who is known in the community. He knew
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where the person stays and the captain asked Mr Chibogo to accompany him to Blof's place of residence.
Mr Chibogo told the captain that the injuries were inflicted by Blof who was using nunchakus. They went to Blof's place of residence. Upon their arrival, they found the plaintiff and Mr Chibogo identified the plaintiff as Blof, the person who allegedly assaulted him.
The captain introduced himself to the plaintiff and asked if he knew Mr Chibogo and the plaintiff confirmed. The captain informed the plaintiff that he was arresting him for assaulting Mr Chibogo and he proceeded to read him his Constitutional rights. He requested the plaintiff to lock the house and to bring along the nunchakus that he used to assault Mr Chibogo with, but the plaintiff denied knowledge of any nunchakus used to assault Mr Chibogo. At the police station, the captain informed the plaintiff of his Constitutional rights once again and the plaintiff confirmed that he understood them and he appended his signature on the document and kept a copy with him. The plaintiff was charged with assault with intent to do grievous bodily harm (GBH), detained and told that he would appear in court the following day, on 09 February 2017.
It was important to detain the plaintiff because of the injuries that Mr Chibogo sustained, which according to the captain were serious. He exercised his discretion and decided to detain the plaintiff.
Mr Chibogo was given a J88 medical form to take to the doctor but he does not know what Mr Chibogo did with it, because after a while when he went to the hospital to check
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the J88 in the file, he could not find it. He went back to enquire from Mr Chibogo about the J88 and Mr Chibogo could not remember what happened to the J88.
He is aware that the plaintiff had a mental condition, but only became aware of it at the time when Advocate Legodi gave him a document to take to George Mokhari hospital for the assessment of the plaintiff. The plaintiff was not assessed and he took him back to police cells, so that he could be further detained.
During cross examination, the captain indicated that Mr Chibogo went to the police station to lay a complaint against the plaintiff because that is the standard procedure to be followed when opening a case against individuals.
He confirmed that after receiving police dockets, he called Mr Chibogo to verify the complaint and ended up at Mr Chibogo's place where he confirmed his injuries and how they were inflicted. Mr Chibogo told him that he did not have a witness because the assault took place out in the street and it were only the two of them.
He took the decision to arrest the plaintiff after noticing the visible injuries sustained by Mr Chibogo that were allegedly inflicted by the plaintiff.
He denied that he had already made the decision to arrest when he left the police station, and that he did not make any further investigations after the case docket was opened. He was referred to an entry dated 08 February 2017 and it was put to him that he had already taken a decision to arrest the plaintiff whilst at the police station, which the captain denied.
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The captain conceded that Mr Chibogo did not mention nunchakus in his statement as the object that was used to assault him, but mentioned that it was during his interview with Mr Chibogo. He was referred to paragraph 3 and 4 of Mr Chibogo's statement, where he mentioned a stick and not nunchakus. He however denied that he was fabricating his version about the alleged assault and the alleged weapon used.
He was further referred to his arrest statement which does not mention the weapon or object used to assault Mr Chibogo. The captain maintained that the purpose of his interview was for Mr Chibogo to explain to him what happened to him and how it happened, to end up him being assaulted.
He says it was not surprising for Mr Chibogo not to seek medical help because the interview took place a day after the incident and that Mr Chibogo was probably not bleeding as he did on the day of the incident. He however maintains that an object was used to assault Mr Chibogo, and that Mr Chibogo complained of pains and sustained a serious injury on his arm, it was an assault that is classified as GBH. He therefore used his discretion to arrest the plaintiff and detained him.
From his recollection the plaintiff was arrested for 6 months. He denied that it is because of his conduct that the plaintiff remained in custody for a period of 6 months and that the first defendant must be held accountable for such incarceration.
The captain could not remember the section from the Criminal Procedure Act ("CPA") that empowered him to
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arrest the plaintiff. It was put to him that he exercised powers in accordance with section 40 of the CPA to arrest and he must have had a warrant to arrest. This was denied by the captain who said that it is not in all circumstances where he should have a warrant before arresting a suspect. He maintained that the visible injuries that Mr Chibogo sustained propelled him to arrest the plaintiff.
It was put to him that he didn't have the J88 medical form, therefore there was no evidence for him to arrest. He maintained that the fact that Mr Chibogo did not go to hospital after he was given the J88 does not mean that he did not sustain injuries, it only means that he failed to go to be examined at the hospital by the doctor.
According to the captain, it was not in his powers to further detain the plaintiff after the plaintiff's first appearance on 09 February 2017.
The second witness called by the first defendant is Reginald Maake. His testimony is summarised as follows:
He has been a public prosecutor for eight years and he was the one prosecuting on behalf of the State on 09 February 2017, when the plaintiff appeared before the magistrate;
Upon the plaintiff's appearance and his explanation of his rights an enquiry about his previous convictions was made. The presiding officer and Mr Maake noticed a peculiar behaviour displayed by the plaintiff that made them to conclude that the plaintiff might be having a mental condition;
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He does not remember if it's him who requested the court to postpone the matter in terms of section 50(6) of the CPA or the magistrate out of his own accord. The plaintiff informed the court that he was receiving his medication from Madidi clinic. The matter was then postponed in custody to obtain the medical reports of the plaintiff. Mr Maake was referred to the evidence, which shows that the plaintiff was treated at Madidi clinic on 17 May 2007 for a mental condition;
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