Mokuke v Minister of Safety and Security
| Jurisdiction | South Africa |
| Judge | Landman J |
| Judgment Date | 10 August 2007 |
| Citation | 2008 JDR 1036 (B) |
| Docket Number | 833/06 |
| Court | Bophuthatswana High Court |
Landman J:
Mr Andrew Goitsemodimo Mokuke, the plaintiff, who works as a barman at the "Kospot" tavern in Delareyville was arrested by Reservist Constable C T Moji (the second defendant), without a warrant, for the alleged unlawful possession of a firearm. He was detained in custody, after a court appearance on 27 September 2005, until he was released on 3 October 2005 when the case against him was withdrawn in the local Magistrate's Court.
2008 JDR 1036 p2
Landman J
The plaintiff alleges that he was assaulted by other inmates while he was in custody. He claims damages for his alleged unlawful arrest and detention and damages on account of the assaults on him by inmates. He alleges the employees of the Minister of Safety and Security (first defendant) should have prevented, The plaintiff claims R300 000.00 for his alleged unlawful arrest and R50 000.00 for general damages suffered as a result of the assault.
The defendants plead that the arrest and detention was not unlawful. The defendants allege that the plaintiff was arrested without a warrant on a reasonable suspicion of committing an offence under the Firearms Control Act 60 of 2000 (unlawful possession of a firearm). An allegation that the plaintiff was arrested on suspicion of having committed robbery was withdrawn. It is alleged that the arrest was authorised by s 41 of the Criminal Procedure Act 51 of 1977. It is also alleged that the plaintiff's detention from 27 September 2005 was authorized on the basis of a warrant of detention issued by the Delareyville Magistrate's Court. The defendants also deny that the plaintiff was assaulted and injured during the course of his detention.
The alleged firearm
The alleged firearm which, I shall call the object) was handed in as an exhibit in the course of the trial. It is common cause that the object is not a firearm as contemplated in the Firearms Control Act and therefore no license is needed to possess it. The object resembles a pistol. It is black and is made of steel which is covered with plastic and has other plastic parts. The object is in fact a hand held single shot air or pellet gun.
2008 JDR 1036 p3
Landman J
The object does not contain a magazine although it looks like it has one, But the magazine is a sham and it does not open. The object, at the time that it was confiscated, was incapable of firing a pellet as parts were missing. At the time of the plaintiff's arrest he was not in possession of any pellets or ammunition.
The object bears the inscription BARNETT NITRO .177 45 (4,5mm) .177 cal "MADE IN ENGLAND". The air pistol is of a calibre less than 5.6mm (.22 calibre) and functions by means of compressed air and not by means of a burning propellant.
The rear locking device on the barrel is missing and because of this it will not be able to propel a pellet through the barrel.
The object does not have the same weight or mass or dimensions as does modern semi-automatic pistols for example: a Z88 or a Glock semi-automatic pistol. The difference in weight or mass of a .22 pistol (firearm), 9 mm pistol and the object is easily established by merely weighing it by hand.
The difference in size of the diameter of the barrel opening of the object, when compared to the diameter of the barrel opening of a .22 pistol (firearm) and a 9 mm pistol, is clearly visible with the naked eye.
The object has no feeding mechanism or sliding mechanism, as is the case with the majority of pistols.
The object does not have a hammer or any other mechanism being activated or released by pulling a trigger that strikes a firing pin.
The inside of the barrel of the object contains no ballistic grooves.
2008 JDR 1036 p4
Landman J
The object has no serial number, neither has any previous serial number been removed or erased.
The object was returned to the plaintiff after his release from custody on 3 October 2005.
The plaintiff's case
The plaintiff called five witnesses. The plaintiff testified first. He said that he was unlawfully arrested by members of the first defendant. He further said that members of the first defendant accused him of possessing a firearm without a license. He was taken to the police station where he was incarcerated.
The plaintiff told the court that at the time of the arrest and at the police station he informed Constable Moji and the members of the first defendant that the object he had in his possession was not a real firearm. He appeared for the first time before a Magistrate on 26 September 2005. The matter was postponed until 3 October 2007 and he was remanded in custody. Inspector Ramuzuli examined the object on 25 September. He fired it and noticed that the barrel moved forward. He told Inspector Ramuzuli that the object was a toy.
Between his first appearance on 26 September 2005 and 3 October 2005, he was assaulted from Wednesday, 28 September 2005 for four consecutive days. When he appeared on 3 October 2005 the case was withdrawn by the Public Prosecutor. The injuries he sustained healed after about three months.
The second witness for the plaintiff was a Mr Van Eeden, a firearm shop owner. Mr
2008 JDR 1036 p5
Landman J
Van Eeden says he is an expert on firearms. He inspected the object and compared it with real firearms in his shop. He concluded that a perfunctory examination would lead anyone examining it to conclude that the object is not a firearm.
The third witness for the plaintiff was a Dr Khan. Dr Khan said that she examined the plaintiff on 3 October 2005 at her surgery in Delareyville. She diagnosed injuries, inter alia, bruises all over the body; mainly over both upper arms and both buttocks and a swelling on the left eye due to soft tissue injury. Normally it takes three to six weeks for injuries similar to the ones sustained by the plaintiff to be completely healed. She said that she was told by the plaintiff that he was assaulted by his cellmates.
The fourth witness was the control prosecutor, at that time, at Delareyville Magistrate's Court, Mrs Helena Lotriet. She prosecuted on 26 September 2005. The case of the plaintiff appeared before the court. The plaintiff's case was postponed until 3 October 2005 for further police investigations and he was remanded in custody. Mrs Lotriet instructed the investigating officer, Inspector Kalela, to verify the plaintiff's address and the nature of the object.
On 3 October 2005 the plaintiff appeared again in her court. The plaintiff had injuries on his face. Inspector Kalela was not present and had not complied with Mrs Lotriet's instructions. She said that she asked one of the police officers, Inspector Herbst, to inspect the object in question and inform her whether it was a real fire-arm or not. Inspector Herbst returned with a statement that the object was not a real firearm. As a result she withdrew the case against the plaintiff.
The fifth and last witness for the plaintiff was Inspector Herbst. He is stationed at the
2008 JDR 1036 p6
Landman J
Delareyville Police Station. The second defendant is his colleague at that station. On 3 October 2005 he was requested by the public prosecutor, Mrs Lotriet, to go to the Police Station and check whether the object, the plaintiff allegedly possessed, was a real firearm or not. He proceeded to the Police Station and retrieved the firearm. Merely by looking at the object he realised that it was not a real firearm. He went back to Mrs Lotriet and gave her a statement to that effect.
Inspector Herbst said he has received training, inter alia, to dismantle and handle firearms. He said that the first thing to do after retrieving a firearm is to make it safe. He has done certain courses which some of his colleagues have not done. Police reservists are trained in the use of Z88 pistols. According to him the Z88 is the most commonly used firearm in the South African Police Service. The South African Police Service does not make use of the Glock pistols. The special task team does.
Inspector Herbst proceeded to explained why he said one would immediately realise that the object was not a real firearm. He also said the second defendant was supposed to have telephoned a more senior police officer or somebody who was more knowledgeable than him about that pistol.
A maximum of five awaiting trial prisoners were held in each cell at the Delareyville Police Station.
Inspector Herbst further said that sometime prior to the date of setdown of this matter Constable Moji approached him. Constable Moji handed over a letter to him and told him that he, Constable Moji, was in trouble. Constable Moji told him, that at the time he arrested the plaintiff, he told his colleague, Sergeant Makgetla, that the object was not a firearm. Despite this Sergeant Makgetla instructed him to arrest the plaintiff.
2008 JDR 1036 p7
Landman J
The defendant's case
The defendants called four witnesses. Their first witness was the second defendant, Reservist Constable Thabang Clement Moji. He said that on 25 September 2005...
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