Ngcama v Minister of Police and another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Cengani-Mbakaza AJ
• Judgment Date: 01 August 2023
• Citation: 2023 JDR 3006 (ECM)
• Hearing Date: 30 June 2023
• Docket Number: 2555/201
• Court: Eastern Cape Division

Cengani-Mbakaza AJ:

INTRODUCTION

[1]

The plaintiff instituted action for unlawful arrest and detention against the Minister of Police (the 1st defendant) and the National Prosecuting Authority (the 2nd defendant) for malicious prosecution. On 12 July 2022, the plaintiff withdrew a claim for malicious prosecution against the second defendant and tendered to make payment for the wasted costs. The tendered payment was accepted by the second defendant’s counsel.

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Cengani-Mbakaza AJ

THE PLEADINGS

[2]

In pursuit of his claim for unlawful arrest and detention, the plaintiff issued a combined summons against the 1st defendant (the defendant) on 27 July 2016. The particulars of claim are summarised as follows:

(a)

On 20 April 2015, at KSD College Libode, the plaintiff was wrongfully arrested and detained by members of the South African Police Service (SAPS), where it was alleged that he committed a crime of rape. The arrest was effected by the said members of SAPS without reasonable suspicion and justifiable cause and without any warrant authorizing it.

(b)

The plaintiff further averred that he was unlawfully detained at Libode police station on 20th April 2015, was later transferred to Wellington Prison, and later released on 31st March 2016. He demands a sum of R2 500 000.00 (Two Million, Five Hundred Thousand Rand only) for a delictual claim against unlawful arrest and detention.

[3]

The defendant delivered a plea dated 18 November 2016 and boldly denied the events as pleaded. This led to defendant filing an amended plea on 07 June 2022. In the amended plea, the defendant averred that the plaintiff was lawfully arrested and detained for a charge of rape of a five-year-old grade R girl by the name of [K. . . . . .].

[4]

The claim is based on vicarious liability; it being pleaded that the members of SAPS committed a delict when acting in the course and scope of the defendant’s employment. In a pre-trial conference held on 12 April 2023, the parties agreed that there would be no separation between merits and quantum. The trial proceeded on that basis.

[5]

Counsel for the defendant admitted that the onus rests on the defendant to justify arrest. He further admitted that the duty to begin consequently rests with them.

DEFENDANT’S CASE

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Cengani-Mbakaza AJ

[6]

Warrant Officer Xhala (the arresting officer) works for the Family, Child, and Sexual Offence Unit (FSC) at SAPS. He received a police docket from Libode police station. The docket consisted of a statement from the victim’s mother who deposed that she observed the child oozing a substance from her genitals and peeing on herself. She ascertained from the child what was wrong. The child could not reveal until she later informed her that she was raped by the plaintiff.

[7]

The docket further consisted of a medical report commonly known as a J88. This report was compiled by the Doctor after he examined the five-year-old girl on 17 April 2015. The details on the gynaecological examination are contained on pages 2 and 3 of the report. The Dr observed that the Clitoris, labia minora, frenulum of the clitoris and para-urethral folds were bloodstained. Additionally, there was active vaginal bleeding and scratches in her genitals to which the Doctor concluded that a vaginal penetration by a blunt object could have occurred in her genitals.

[8]

The arresting officer interviewed the child in the presence of her mother. The child consistently informed him that she was raped by the plaintiff. The child implicated the plaintiff by calling his name and further described him as Sheniye’s brother. In a statement written in both English and IsiXhosa languages the child stated that the plaintiff called her at his home and raped her.

[9]

The arresting officer testified that considering the evidence that he possessed in the police docket, he formulated a reasonable suspicion that the plaintiff had committed a crime of rape. He then approached the suspect and introduced himself. He informed him of his constitutional rights and executed arrest and detention. The arresting officer further testified that even though no semen was detected which could be utilised to provide DNA evidence, he still held a reasonable suspicion that the plaintiff had committed the said crime.

[10]

In cross-examination, counsel for the plaintiff suggested that the officer should not have arrested the plaintiff because there was no DNA evidence which is required for conviction in rape cases. Counsel claimed that the plaintiff should have been interviewed before arrest. The officer should have relied on plaintiff’s denial of facts

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Cengani-Mbakaza AJ

and not arrest him, so he suggested. The arresting officer testified that he interviewed the plaintiff and that he denied the allegations against him.

[11]

Counsel criticised the arresting officer for relying on the child’s statement which was not commissioned. The arresting officer conceded that the child statement was not commissioned and asked the court to note that this was a child and that he interviewed her in the presence of her guardian (the mother).

[12]

Counsel further criticised the arresting officer for not employing less invasive arrest techniques. It was put to him that the plaintiff was not a flight risk. The arresting officer conceded that there was no likelihood that the plaintiff would evade his trial. He further stated that he was not required to request a warrant prior to his arrest. Based on the information in the police docket and his analysis of facts he decided that the plaintiff ought to be arrested and detained. The arresting officer was adamant that his actions were justified. With this evidence, the defendant closed his case.

THE PLAINTIFF’S CASE

[13]

The plaintiff testified that at the time of his arrest, he was a student at FET College in Mthatha. On the day of his arrest, the police officer came to school, introduced themselves and publicly informed him of the crime he was being arrested for.

[14]

They arrested and detained him at Ngqeleni Police Station for three days, later at Libode police station and further at Wellington prison. After his first appearance in court, he was detained for a period of seven days. He later applied for bail which was denied. He was detained for a period of twelve months. When the 5-year-old girl testified in court, she implicated him and another known 5-year-old boy as the perpetrators. He testified that during criminal proceedings, the court returned a verdict of not guilty and discharged him accordingly.

[15]

The plaintiff further testified that the police cells were filthy with a capacity of about 10 inmates inside. They were made to wash with cold water and sing the whole night. It was easy to fight among the inmates, so he testified.

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Cengani-Mbakaza AJ

[16]

In cross-examination the plaintiff testified that on the day of the incident he had paid a visit at Nqadu area. He admitted that the child is his neighbour and would normally come to his home to play with others. The plaintiff further confirmed that he made a statement to the police and informed them that on the day of the incident he saw the child fetching water at his home. It was further put to him that the arrest and subsequent detention were justified.

ISSUES

[17]

The issues up for debate are whether plaintiff’s arrest and subsequent detention were justified and whether the less invasive methods of arrest were not necessary in the circumstances.

THE LAW

[18]

Section 12 of the Constitution of the Republic of South Africa (the Constitution) [1] guarantees the freedom and security of a person. The section pledges inter alia the right not to be deprived of freedom arbitrarily without a just cause. The onus rests upon the arrestor to prove that the arrest was objectively lawful. [2]

[19]

It is common cause that the plaintiff was arrested without a warrant of arrest. Section 40(1) (b) of the Criminal Procedure Act (CPA) [3] prescribes arrest without a warrant as is relevant in this case. The Section reads,

“A peace officer may, without a warrant, arrest any person whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from custody”.

[20]

To prove that the arrest was lawful, it must be satisfied that:

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(i)

The arresting officer was a peace officer;

(ii)

the arresting officer entertained a suspicion;

(iii)

the suspect to be arrested committed an offence referred to in Schedule 1; and that

(iv)

the suspicion rested on reasonable grounds.

[21]

The ruling in Mabona [4] demonstrates how a reasonable suspicion is formed. Jones J explained what the concept of reasonable suspicion entailed. First, he held, the test is an objective one involving an enquiry into whether a reasonable person in the arrestor’s position and having the same information would have considered that there were ‘good and sufficient grounds for suspecting that the arrestee had committed a Schedule 1 offence. Secondly, the arrestor is required to analyse and assess the quality of the information critically and not...