Mofokeng v Minister of Police

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Du Plessis AJ
• Judgment Date: 19 September 2023
• Docket Number: A2023-009958
• Hearing Date: 08 August 2023
• Court: Gauteng Local Division, Johannesburg

Du Plessis AJ:

[1]

This is an appeal against the finding of the learned Magistrate, Mr AW Morton, who found the Respondent, the Minister of Police, not liable for the unlawful arrest and detention of the Appellant, Mr Mofokeng.

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[2]

The Appellant was arrested and detained without a warrant of arrest. The Respondent pleaded that the arrest was made in terms of s 40(1)(b) of the Criminal Procedure Act [1] after the Appellant assaulted (the Appellant refers to it as “reprimanding”) his then 14-year-old stepdaughter. The Appellant and Sgt Mwale, a police officer stationed at the Family Violence and Child Protection Services at Vereeniging and the arresting officer, gave evidence of what had transpired.

[3]

The following facts emerge from the dockets and evidence: On 17 September 2019, angry at his stepdaughter for not sleeping at home, the Appellant hit her with a belt, using the buckle. The victim sustained injuries on her face, around her upper hands and on her legs. The victim’s mother could not immediately take her to the doctor as she did not have money.

[4]

Sgt Mwale testified that he was on standby when he received the docket on 20 September 2019. He met the complainant and her mother at a park, where he interviewed them. He then took the victim to the Levai Mbatha Clinic to have her injuries attended to as “she sustained severe injuries, because this child was in pain”. [2] Sgt Mwale testified that the injuries were severe as he could see the reddish colour of the blood. This was not in the docket or his statement filed in the docket, and the J88 indicated old bruises on the left area, left arm and left thigh.

[5]

He confirmed with the mother of the victim that they were not staying with the Appellant at that time. They did not have a stable place to stay as they were scared to return home after what had transpired. Based on the information received from the victim as well as the J88, and on instruction from his superiors, he decided to arrest the Appellant so that he can appear before court to take responsibility for his actions, and to give the complainant and her mother the opportunity to occupy the house safely.

[6]

The case docket indicates that the Appellant was arrested for “assault: grievous bodily harm” (“GBH”). The Appellant claims that this arrest was unlawful because, in terms of

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s 40(1)(b), there must be a suspicion that the arrested person committed a Schedule 1 offence, and assault GBH is not a Schedule 1 offence.

[7]

The Appellant was arrested on Wednesday, 25 September 2019. Sgt Mwale testified that when they tried to arrest the Appellant, he tried to flee. Sgt Mwale upon arrest, informed the Appellant that he was arrested for GBH and explained his rights to him. The “statement regarding interview with suspect” filled in after his arrest stated “assault with intent to cause grievous bodily harm committed on 17 September 2019”. The matter was not enrolled on 25 September 2019, as the prosecution needed certain information before prosecuting. The Appellant was then released.

[8]

Sgt Mwale, under cross-examination, stated that he did not know the contents of s 40(1)(b). After reading the Criminal Procedure Act schedules, he confirmed that he arrested the Appellant for a Schedule 1 offence and that assault GBH (a Schedule 7 offence) and assault when a dangerous wound is inflicted (a Schedule 1 offence) are the same.

[9]

The Appellant denies that he was trying to escape arrest. This information is not contained in the bail information completed at the police station by an officer present at the arrest. The Appellant’s version is that he walked past his own house to borrow a phone and was at no time fleeing. The Appellant denies that it was explained why he was arrested or that his rights were read to him. He stated that he was only given a piece of paper in the cells and did not understand what he was reading. After being arrested, the Appellant gave a statement stating that he was only trying to discipline his stepdaughter. It was not his intention to hurt her.

[10]

He further states that after the arrest, he was not given the opportunity to go to the police station on his own or to attend the court on a warning. The Appellant was charged on the Friday. Sgt Mwale did not consider bail due to his rank, and his captains stated that they are not the court and do not give bail to persons. The Appellant was eventually released on Monday after 3 o’clock without the case being enrolled.

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Court a quo finding

[11]

The Magistrate found the Respondent’s version more probable than the version of the Appellant. He did so by stating that the jurisdictional requirements for s 40(1)(b) and (q) of the Criminal Procedure Act [3] were met, namely that he had a reasonable suspicion that an act of domestic violence, as contemplated in the Domestic Violence Act, [4] was committed. This is an objective standard of the...