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[2011] ZAGPJHC 11
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Rowan v Minister of Safety and Security NO ([2011] 3 All SA 443 (GSJ)) [2011] ZAGPJHC 11; 2026/2009 (9 March 2011)
SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
CASE NO:
2026/2009
DATE: 9/03/2011
REPORTABLE
In
the matter between:
ROWAN,
ANTHONY JOHN ATHOL
.
Plaintiff
and
MINISTER
OF SAFETY AND SECURITY N.O.
Defendant
J U D G M E N T
MOKGOATLHENG
J
INTRODUCTION
(1) The plaintiff has
instituted a claim for damages consequent upon his alleged unlawful
arrest and detention. It is common cause
that on the 29 May 2007 the
plaintiff was arrested without a warrant and detained at the Randburg
Magistrate Court’s holding
cells–by members of the South
African Police Services acting within the course and scope of their
employment with the defendant–before
being “
released
on warning
” pursuant
section 72
of the
Criminal
Procedure Act 51 of 1977
“The Act”.
(2) What
distinguishes the arrest and the concomitant detention in this matter
is, irrespective of either party’s jurisprudential
perspective
in respect of the so-called fifth ”
constitutional
jurisdictional pre-requisite”
espoused and enunciated by
Bertelsmann J in
Louw v Minister of Safety and Security
2006
(2) SACR 178
(T) at 186a-187e,
purportedly arising from
section 40 (1) (b) of ”The Act”
relating to
Schedule 1
offences and regarding the execution of
lawful arrest, both the arrestor and the arrestee are
ad idem
that the
raison dêtre
predicating the plaintiff’s
arrest, was effected with the prescient settled intention to
expeditiously present the plaintiff
to court in order to facilitate
his immediate release on bail. The case turns on whether the
plaintiff’s arrest and detention
were lawful or not.
FACTUAL
MATRIX
(3) The complainant
Heyman under oath describes Unit 7 situate in Quenry Complex
Lonehill, “
as his property
”. On 24 May 2007 he
locked and secured the unit. On 26 May 2007 he received a report from
an estate agent that “
the bath was gone
”. On
investigation he discovered that the movables including the bath and
chandelier which were “
affixed
” to the unit were
removed. He estimates the value of what he terms his “
stolen
property
” at R82 000.00.
(4) On enquiry from the
resident RSS Security, Heyman ascertained that the plaintiff had
removed the aforedescribed items from his
unit. He avers that
he did not give the plaintiff permission to “
steal or take
anything from his apartment”.
On 27 May 2007, the
investigating officer Inspector Kgoedi interviewed Heyman, and
subsequent thereto, attended at the crime scene
where his
investigations confirmed Heyman’s allegations.
(5) On 29 May 2007 Kgoedi
interviewed the plaintiff at his business premises. The plaintiff
admitted removing the contents of Unit
7, with the
caveat
that
on 24 May 2007 he returned the bath and chandelier and affixed same
to the unit. The plaintiff showed Kgoedi where the
missing
items were stored at his business premises. He explained that he had
removed the movables, together with the affixed bath
and chandelier
in pursuance of satisfying a default judgment he had obtained against
a certain Nathaniel, the previous owner of
Unit 7.
(6) During the interview,
Kgoedi afforded the plaintiff an opportunity to engage Heyman
regarding what he categorised as “
a misunderstanding
”
concerning the removal of the contents of Unit 7. The plaintiff
failed to persuade Heyman or his superiors to withdraw
the charges
laid against him. Heyman implored Kgoedi to proceed with the
investigation.
(7) Kgoedi arrested the
plaintiff, took him to the Douglasdale Police Station, prepared the
docket for court, drove to the Randburg
Magistrate Court, presented
the docket to the control prosecutor, and made representations that
the matter be enrolled in order
to facilitate that the plaintiff be
released on bail.
(8) It is common cause
that the matter was not enrolled on 29 May 2007. The plaintiff on
written notice in terms of
section 72 of “The Act”
was warned to appear in court on 30 May 2007. The control
prosecutor thereafter made entries to the docket instructing Kgoedi
to
conduct further investigations to:
“
(a) obtain
and file statements from Darren and Ian of RSS Security of
their knowledge of the incident;
(b) obtain and file a
copy of the default judgment order granted against the previous Unit
7 occupier of the premises (Nathaniel)
where the alleged offence took
place; and
(c) the list of the
properties removed from complainant’s house”.
(9) On 30 May 2007 the
matter was again not enrolled because the requested investigations
were not completed. On 27 June 2007,
the plaintiff filed a
comprehensive exculpatory statement with the control prosecutor. The
matter has up to date not being enrolled
although a
nolle prosequi
certificate has apparently not been issued.
(10) Kgoedi testified
that he arrested the plaintiff after forming a reasonable suspicion
that he had committed the
Schedule 1
offence of
Housebreaking and Theft. He states that as he did not have the
authority to release the plaintiff on bail or warning,
the arrest was
effected with the intention of expeditiously bringing the plaintiff
before court in order to facilitate that he
be released on bail.
THE PLAINTIFF’S
SUBMISSIONS
(11) The plaintiff
contends that his arrest was unlawful and infringed his
constitutional right to freedom and dignity. He submits
that he
should not have been arrested, because he was:
(a) a reputable
businessman and a practising attorney;
(b) a registered
residential property owner with a fixed place of abode; and
(c) not a flight risk, he
would not interfere with any further investigations and would attend
his trial.
(12)
The plaintiff contends that there were other less invasive methods of
securing his attendance at court, and presence at the
trial by for
instance:
(a) the issue of a
summons in terms of
section 54 of “The Act”,
consequently, he argues that he was unlawfully arrested and
detained and has suffered damages in respect of
contumelia,
the impairment of his dignity and reputation.
THE DEFENDANT’S
SUBMISSIONS
(13) The defendant
invokes
section 40 (1) (b) and (e
)
of “The
Act”
and argues that the plaintiff’s arrest and
subsequent detention in terms of
section 50 (3)
thereof
were lawful
.
(14) The defendant
contends that because Housebreaking and Theft is an offence listed in
Schedule 1 of “The Act”,
and Kgoedi was not
a commissioned officer appointed in terms of
section 33 (1) (v)
thereof, the plaintiff’s arrest was with the objective
intention to present him to court to answer the charge.
THE APPLICABLE
LEGAL PRINCIPLES
(15)
Section 12 (1) (a) of The Constitution
guarantees the
right of security and freedom of a person which includes the right
‘
not to be deprived of freedom arbitrarily or without just
cause’.
Any deprivation of freedom is regarded as
prima facie
unlawful and requires justification by the
arrestor.
‘
The
constitutionality of an arrest will almost invariably be heavily
dependent on its factual circumstances……. There
is no
all purpose test for a constitutionally acceptable arrest’,
per Justice Sachs in
Minister of Safety and Security v Van
Niekerk
2008 (1) SACR 56
(CC);
(2007 (10) BCLR 1102)
para 17 and 20.
(17)
Section 35 (1)
of the Constitution
decrees that an arrested person has
the right to be brought before court as soon as reasonably possible
but not later than
48 hours after arrest, and to be released from
detention subject to reasonable conditions if the interests of
justice so permit.
THE
INCIDENCE OF ONUS
(18) Rabie CJ explained
in
Minister of Law and order v Hurley and Another
1986 (3) SA
586
(A) at 589E-F
“
An arrest constitutes an
interference wit the liberty of the individual concerned, and it
therefore seems 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”. ”The onus
of justifying the detention then rests on the defendant”.
See
Zealand v Minister of Justice
[2008] ZACC 3
;
2008 (6) BCLR 601
(2008) (2) SACR 1
(CC) para 24 and 25.
(19)
The plaintiff need only allege the deprivation of his freedom and
require of the defendant to plead and prove justification
of his
arrest. The lawful exercise of discretion is a jurisdictional fact
for a lawful arrest, consequently, the arrestor bears
the onus of
alleging and proving that the discretion to arrest was lawfully
exercised.
(20)
Section 40 (1)
(b)
of “The Act”
provides
Arrest by peace officer
without warrant
(1) “
A peace
officer may without warrant arrest any person -
(b) whom he reasonably
suspects of having committed an offence referred to in Schedule 1;
(e) who is found in
possession of anything which the peace officer reasonably suspects to
be stolen property or property dishonestly
obtained, and whom the
peace officer reasonably suspects of having committed an offence with
respect to such thing”.
(21) In
Duncan v
Minister of Law and Order
1986 (2) SA 805
(A) at 818G-H
Van
Heerden JA held: “
in order for an arrestor to enjoy
protection against an action for unlawful arrest under this section,
he must establish the following
jurisdictional pre-requisites for the
invocation of a defence based on section 40(1) (b);
(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
the suspicion must
rest on reasonable grounds”.
(22) ……..“
In
order to prove the fourth requirement – the test is objective
in that the arrestor must on an objective and subjectively
justifiable grounds show that he did not only have objective
reasonable grounds for believing that the arrestee has committed a
Schedule 1 listed offence, but he also had objective reasonable
grounds for believing that the arrestee had the requisite mens
rea
for committing the offence
”.
See Duncan v Minister of
Law and Order (supra) at 814D-E. See also Minister of Law and Order
and Others v Hurley and Another (supra)
at 579F-G; and Minister of
Law and Order and Others v Pavlicevic (supra) at 684G. See Minister
of Law and Order and Others v Pavlicevic
at 693E-F.
(23) “
Peace
officers are entitled to exercise their discretion as they see fit,
provided that they stay within the bounds of rationality.
The
standard is not breached because an officer exercises the discretion
in a manner other than that deemed optimal by the court.
A number of
choices may be open to him, all of which may fall within the range of
rationality. The standard is not perfection,
or even the optimum,
judged from the vantage of hindsight and so long as the discretion is
exercised within this range, the standard
is not breached”.
per
DP Harms in
Minister of Safety and Security v Sekhoto (131/10)
[2010] ZASCA 141
delivered 19 November 2010.
(24) Jones J in
Mabona
and Another v Minister of Law and Order and Others
1988 (2) SA 654
(SE) at 658E-G
explained the text for reasonable suspicion
thus:
The test whether a
suspicion is reasonably entertained within the meaning
of section
40 (1) (b) is objective (S v Nel and Another
1980 (4) SA 28
(e) AT
33H).
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 be that in
evaluating this information, a reasonable man would bear in mind that
the section authorizes drastic police
action. It authorizes an arrest
on the strength of a suspicion and without the need to swear out a
warrant, i.e. something which
otherwise would be an invasion of
private rights and
….[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
”.
(my emphasis)
(25)
In Le Roux v
Minister of Safety and Security and Another
2009 (2) SACR 252
(KZP)
it was held:
“
However, this
does not mean that the information at his disposal must be of
sufficiently high quality and cogency to engender in
him a conviction
that the suspect is guilty.
Suffice to say that the suspicion
must be based on solid grounds otherwise it would be flighty or
arbitrary, and not a reasonable
suspicion”.
(my emphasis)
DISCRETION
(26) “
An arrest
is unlawful if the arrestor has no intention of bringing the arrestee
before a court. An arrestee may be detained for
48 hours before being
brought before court. An arrestor after complying with the
jurisdictional pre-requisites may invoke
section 40 (1) (b)
by properly exercising a discretion, the power conferred by the
exercise of the discretion…….is narrowly
circumscribed……..“An
arrest under
section
40 (1) (b)
is not unlawful where the arrestor entertains
the required reasonable suspicion but intends to make further
enquiries after the
arrest before finally deciding whether to proceed
with a prosecution, provided it is the intention throughout to comply
with
section 50
of the Act, that is a
prosecution must follow”.
Duncan v Minister of Law
and Order 1986 (2) 805 (AD) at806-820.
(27)
Harms DP in
Minister of Safety and Security v Sekhoto (131/10)
[2010] ZASCA 141
(19 November 2010)
has succinctly enunciated
the pre-requisites pertaining to arrest and detention and has
addressed the purported constitutional imperatives
alluded to by
Bertelsmann J in
Louw v Minister of Safety and Security
(supra).
I can do no better than fully cite the Learned
Judge’s compendium when he expressed himself thus: “
once the jurisdictional facts for an arrest, whether in terms of
any paragraph of
Section 40 (1) (b)
or in terms
of
Section 43
are present, a discretion arises.
The question whether there are any constraints on the exercise of
discretionary powers is essentially
a matter of construction of the
empowering statute in a manner that is consistent with the
Constitution. In other words, once the
required jurisdictional facts
are present the discretion whether or not to arrest arises. The
officer, it should be emphasised,
is not obliged to effect an
arrest”
.
(28)
The Learned DJP Harms continued: “
The discretion must be
properly exercised. But the grounds on which the exercise of such a
discretion can be questioned are narrowly
circumscribed.’
an exercise of the discretion in question will be clearly unlawful
if the arrestor knowingly invokes the power to arrest for a purpose
not contemplated by the legislator. The decision to arrest must be
based on the intention to bring the arrested person to justice,
any
discretion must be exercised in good faith, rationally and not
arbitrarily……….”
(29)
“
Once an arrest has been effected the peace officer must
bring the arrestee before a court as soon as reasonably possible and
at
least within 48 hours. Once that has been done the authority to
detain is inherent in the power to arrest has been exhausted.
The authority to detain the suspect further is then within the
discretion of the court……..”
(30)
“
The court requires a judicial evaluation to determine
whether it is in the interests of justice to grant bail
,
if a peace officer were to be permitted to arrest only once he is
satisfied that the suspect might not otherwise attend
the trial then
that statutory structure would be entirely frustrated. To suggest
that such a constraint upon the power to arrest
is to be found in the
statute (i.e.
section 40 (1) (b)
)
by inference is untenable
………..”
(my underlining)
(31)
“‘
Once the jurisdictional facts are proved by showing
that the functionary in fact formed the required opinion, the arrest
is brought
within the ambit of the enabling legislation, and is thus
justified. And if it is alleged that the opinion was improperly
formed,
it is for the party who makes the allegation to prove it.
There are in such a case two separate and distinct issues, each
having
its own onus (
Pillay v Krishna and Another
1946 A D
946
at p 953).
The first is whether the opinion was
actually formed; the second, which only arises if the onus on the
first has been discharged
or if it is admitted that the opinion
was actually formed, is whether it was properly formed……….”
(32)
“
While the purpose of arrest is to bring the suspect to
trial the arrestor has a limited role in that process.
He
or she is not called upon to determine whether the suspect ought to
be detained pending a trial. That is the role of the court
(or in
some cases a senior officer). The purpose of the arrest is no more
than to bring the suspect before the court (or the senior
officer) so
as to enable that role to be performed.
It seems to me to
follow that the enquiry to be made by the peace officer is not how
best to bring the suspect to trial, the enquiry
is only whether the
case is one in which that decision ought properly to be made by a
court (or the senior officer).
Whether his decision on that
question is rational naturally depends upon the particular facts but
it is clear that in cases of serious
crime – and those listed
in Schedule 1 are serious, not only because the Legislature thought
so – a peace officer could
seldom be criticized for arresting a
suspect for that purpose. The mere nature of the offences of which
the respondents were suspected
in this case – which ordinarily
attract sentences of imprisonment for 15 years – clearly
justified their arrest for
the purpose of enabling a court to
exercise its discretion as to whether they should be detained or
released and if so on what
conditions, pending their trial
………...”
(my
emphasis)
THE ANALYSIS OF
EVIDENCE
(33) Mr Murray on
plaintiff’s behalf attempted to impugn Heyman’s
locus
standi
in preferring charges against the plaintiff. He disputed
Heyman’s ownership of Unit 7 and suggested that Nathaniel was
the
actual owner, apparently because same was still registered in his
name at the Deeds Registry’s Office.
(34) In my view there is
no merit in this submission, The plaintiff admits that on 27 May 2007
after his business partner Richard
Curry had “
phoned him and
told him there had been some incident…..(that is relating to
the removal of the property)
he suspected then that may be
somebody had purchased the property in execution….”
And having discovered and knowing that Standard Bank had a
bond over the property he
“
kind of put two
and two together and thought that Standard Bank had foreclosed and
that property had been sold in execution”.
(my
emphasis)
(35) The attack on
Heyman is unjustified, there is no ambiguity or improbability in his
affidavit in describing Unit 7 as “
my property or my
apartment
” which would have obliged Kgoedi to investigate
this exigency. Fact of the matter is, Heyman had a proprietary
interest in
Unit 7 and was its lawful custodian. The contents therein
were under his personal control, this is confirmed by the plaintiff,
whose evidence is that he had a conversation with Heyman on 27 May
2007 during which Heyman “
had professed an interest in the
unit, in that Heyman introduced himself as having had a show day
although he did not tell him how
he had acquired that property”.
(36) The plaintiff when
asked by his counsel if he knew whether Heyman professed a
proprietary interest in Unit 7 answered: “
although Heyman
did not profess to speaking as an agent or owner
he (the
plaintiff) made certain assumptions………
he
certainly did not ask him how he acquired it”’.
In
my view the plaintiff’s concession supports Heyman’s
statement that Unit 7 was his property.
(37) Logic dictates that
a reasonable attorney unlawfully accused of Housebreaking and Theft
with the attendant dire consequences,
would certainly when
confronting the alleged complainant attack his
locus standi
and proprietary interest in respect of the said premises and contents
which are the crucible which found criminal charges against
him. In
any case, it is instructive that Heyman is not joined in these
proceedings on a claim of malicious prosecution.
WAS THE SUSPICION
REASONABLY FORMED
(38) In the
formulation of his suspicion before making the arrest Kgoedi
considered the following facts, he:
(a) interviewed Heyman
regarding the allegations in his sworn statement;
(b)
visited the crime scene Unit 7;
(c)
established from the RSS Security Officers that the plaintiff had
removed items from Unit 7;
(d)
interviewed the plaintiff who told him he had entered Unit 7 without
Heyman’s consent, and had removed the items therein
in
satisfaction of a default judgment against Nathaniel under the belief
that same still belonged to the latter;
(e)
accorded the plaintiff an opportunity to discuss the matter with
Heyman and his superiors with a view that the parties would
arrive at
an understanding;
(f)
engaged Heyman regarding his discussion with the plaintiff and Heyman
insisted that the plaintiff had no legal right to
enter the premises
and remove his property; and
(g)
the plaintiff showed him the items he had removed.
WAS THE DISCRETION
TO ARREST LAWFULLY EXERCISED
(39) Kgoedi was
criticized for not exercising a discretion against arresting the
plaintiff on the basis that the plaintiff:
(a) is an admitted
attorney;
(b) has a fixed abode;
(c)
was not a flight risk;
(d) did not present any
danger to the society; and
(e) was in fixed
employment and the Managing Director of a reputable company.
(40) The question
in establishing the validity of the plaintiff’s arrest is in
essence predicated on the proper exercise of
Kgoedi’s
discretion. The question is:
“
(a) was the
exercise of Kgoedi’s discretion invoked in pursuance for a
purpose not contemplated by the Legislator?
(b)
was the exercise of Kgoedi’s discretion exercised capriciously
or unjustifiably for an ulterior purpose, or in fraudem
legis
and not with the intention to bring the arrestee to justice? and
(c)
did Kgoedi exercise his discretion in accordance with the principles
enunciated by Innes ACJ in
Shidiack v Union
Government
(Minister of Interior)
1912 AD 642
at 651-652
(41) The manner in which
Kgoedi conducted the investigation shows that he evaluated the
objective facts at his disposal before effecting
the arrest and his
conduct in doing so shows that had: “
a semblance of
knowledge of the elements of the crime as expected of him in order
that he would be in position to form some basis
for belief that the
plaintiff had committed the crime he was accused of, Kgoedi did
endeavour to ascertain the mindset of the plaintiff
when considering
crime of which he was accused
of committing”.
See
Olivier v Minister of Safety and Security
2008 (2) SACR 446
9W)
(43)
Kgoedi solicited an explanation from the plaintiff regarding the
reason why he entered the premises and removed its contents.
He took
into consideration the plaintiff’s exculpatory explanation and
in my view, reasonably exercised his discretion before
formulating
his suspicion and arresting the plaintiff. From the objective facts
Kgoedi believed that the plaintiff had a
prima facie
case to meet.
(44) The gist of
plaintiff’s exculpatory explained defence as I understand it is
that, Kgoedi should first have established
his
mens rea
and
guilt beyond reasonable doubt. This, with respect, is not what the
law requires of Kgoedi, this exigency is the court’s
exclusive
prerogative,
(45) It is unfairly
onerous to repose a judicial interpretative burden on Kgoedi to make
a judicial pronouncement on the plaintiff’s
purported lack of
mens rea
defence in this particular case with its peculiar
facts. In my view strictly speaking this is not a textual requirement
of
section 40 (1) (b).
The primary overarching
definitive question confronting an arrestor in such a case after the
arrestor’s suspicion is
bona fide
and reasonably formed,
is whether the arrestee’s exculpatory explanation vis-à-vis
the objective facts negatives the
complainant’s accusations.
(46) The issue whether
the bath and chandelier did or did not comprise movables or whether
such were affixed to, or acceded to Unit
7’s structure, or
whether the plaintiff is entitled to rely on a “
claim of
right
” in removing the items, or whether subjectively in
his state of mind the plaintiff could not have committed the crime of
Housebreaking and Theft, is a judicial prerogative determined by the
court after the adducement of evidence.
(47) In any event, the
complexity of deciding whether a movable object accedes to the soil
so as to become an immovable object is
the subject of divergent legal
debate in decided cases. The criminal context of proof beyond a
reasonable doubt is an element to
be decided by a court. Objectively
speaking it cannot reasonably be expected that Kgoedi should be
seized with this issue.
(48) In view of the
factual evidence available to Kgoedi, he cannot be faulted that he
did not objectively and
bona fide
entertain a reasonable
suspicion that the plaintiff had committed the offence of
Housebreaking and Theft, and consequently, after
properly exercising
his discretion to arrest, did so. Kgoedi had to apply an element of
objectivity relative to the prevailing
circumstances in objectively
reaching the decision to arrest the plaintiff. In the
bona
fide
exercise of a discretion a court cannot adopt an armchair
critic’s posture if the arrest is not predicated or motivated
by
ulterior motive or illegality.
(49) Adv. Rowan SC’s
intervention, which prompted the Deputy Director of Prosecution’s
Office to order the control prosecutor
to consider the docket and
enrol the matter happened after Kgoedi had taken the plaintiff to
court. Nothing turns on the
fact that Kgoedi told Adv. Rowan SC
that he was not “
going to give the plaintiff bail”
because the determination to do so is a judicial prerogative beyond
Kgoedi’s control. In any event, this assertion does not
detract
from Kgoedi’s singular intention to bring the plaintiff to
court to be released on bail. It has never been seriously
suggested
that Kgoedi opposed the plaintiff’s release on bail.
After all why, would Kgoedi bring the plaintiff to court,
instead of
detaining him for 48 hours at the police station as the law decrees?
(50) Decisively it cannot
be cogently argued that Kgoedi never intended to bring the plaintiff
to court to be released on bail.
Adv. Rowan SC confirms that
Kgoedi told him at 2.57pm:
(a) he had personally
taken the plaintiff to court;
(b)
he wanted to place the matter on the roll that day; and
(c) the control
prosecutor told him that as the matter was not ready for trial he
wanted to postponed it for 7 days.
IS THERE A FIFTH
JURISDICTIONAL PREREQUISITE
IN SECTION 40 (1) (b)
(51)
The constitutional jurisdictional prerequisite, laid down by
Bertelsmann J in
Louw v Minister of Safety and Security 2006
(Z) SACR 178 (T) at 186a-187e
, where the learned judge said
the following:
‘
I
am of the view that the time has arrived to state as a matter of law
that, even if a crime which is listed in
Schedule 1 of Act 51
of 1977
has allegedly been committed, and even if the
arresting peace officers believe on reasonable grounds that such a
crime has indeed
been committed, this in itself does not justify an
arrest forthwith.
An
arrest, being as drastic an invasion of personal liberty as it is,
must still be justifiable according to the demands of the
Bill of
Rights…..[P]olice are obliged to consider, in each case when a
charge has been laid for which a suspect might be
arrested, whether
there are no less invasive options to bring the suspect before the
court than an immediate detention of the person
concerned. If there
is no reasonable apprehension that the suspect will abscond, or fail
to appear in court if a warrant is first
obtained for his/her arrest,
or a notice or summons to appear in court it obtained, then it is
constitutionally untenable to exercise
the power to arrest’
is
a single judge judgment and not binding if another judge believes it
to be clearly incorrect.
(52) With regard to the
seismic decision of
the
Minister of Safety and Security
and Sekhoto
(supra)
by Harms
DP, with due respect, at the risk of being accused of pomposity and
self aggrandizement, Goldblatt J in
Charles v Minister of
Safety and Security
2007 (3) SACR 137
(W)
was not the lone
dissenting voice regarding whether there was a constitutional
imperative encapsulated in the interpretation of
section 40 (1)
(b).
(53) I also dissented
from the approach adopted by my brother Bertelsmann J in
Louw v
Minister of Safety and Security supra in the judgment of Rudolph and
Others v Minister of Safety and Security and Another
2009 4 All SA 3
and followed Goldblatt’s J approach in
Charles v Minister
of Safety and Security (supra) and Tsose v Minister of Justice and
Others
1951 (3) SA 10
(A).
My judgment was not upheld by the
Supreme Court Of Appeal for other reasons. I must confess though that
I did not conceptualize
my dissention in the intellectually
articulate and distinctive rapier incisiveness of Harms DP.
(54) I agree with Harms
DP that the fifth jurisdictional requirement espoused by Bertelsmann
J that: “
if there is no reasonable apprehension that
the suspect will abscond, or fail to appear in court if a warrant is
first obtained
for his/her arrest, or a notice or summons to appear
in court is obtained, then it is constitutionally untenable to
exercise the
power of arrest
” does not pass constitutional
muster in that there is nothing in
section 40 (1)(b) of “The
Act”
which leads to the conclusion that the
interpretation of the section encapsulates Bertelsmann J’s
fifth constitutional jurisdictional
requirement or that the so-called
fifth jurisdictional fact is part of
section 40 (1) (b) of “The
Act”,
or that consequently, by parity of
reasoning it forms part of
section 43 of the Act
.
(55) I further agree with
the Learned Harms DP that although
section 12 (1) (a) of The
Bill of Rights
guarantees the right of security and freedom
of a person which includes the right not to be deprived of freedom
arbitrarily or without
just cause,
section 40 (1) (b)
has not been declared unconstitutional, consequently, “
it
could hardly be suggested that an arrest under the circumstances set
out in section 40 (1) (b) could amount to a deprivation
of freedom
which is arbitrary or without just cause in conflict with the Bill of
Rights because…….a lawful arrest
cannot be arbitrary……”
(56) The
instructions relating to the arrest and detention of suspects, issued
by the National Commissioner of Police on 9 May 2005
are guidelines
based on the case of
Louw v Minister of Safety and Security
supra
which has since been overruled by the judgment of
Minister of Safety and Security v
Sekhoto supra,
consequently, these guidelines are
per se
not invested
with the cloak of legal force and, consequently, cannot be cited as
authority governing police conduct in the exercise
of their
discretion in effecting lawful arrests.
(57) The only outstanding
question is, whether the plaintiff’s detention was lawful or
not. A distinction is drawn between
arrest and detention. In
Mahlongwana v Kwatinidubu Town Committee
1991 (1) SACR 669
(E)
the following is stated at
675d-f:
‘
It is clear
that the mere act of arrest itself involves deprivation of liberty,
but our law recognises a clear distinction between
the act of arrest,
which may occur anywhere, and the act of detention in custody, which
involves incarceration after the arrest,
and pending the taking of
further procedural steps. The power granted to detain may in
particular circumstances include the power
to arrest.
See R
v Moquena
1932 OPD 52.
However, in my view, the power to
arrest does not include the power to detain save insofar as such
detention may be a concomitant
to the arrest itself. Arrest is the
act by which a free person is apprehended, if necessary by the use of
force. Once the arrest
has been effected, the authority of the person
effecting the arrest insofar as any further detention is concerned,
ceases
. S v Van Vuuren
1983 (4) SA 662
(T) at 668E.
Any
subsequent detention, which involves restraint in confinement for a
specified or unspecified period of time, must be in terms
of an
authority to detain, and is not automatically conferred, without such
authority, on the person authorised to arrest.’
(58) In
Hofmeyr v
Minister of Justice and Another
1992 (3) SA 108
(C)
King J,
(as he then was) held that even where an arrest is lawful, a police
officer must apply his mind to the arrestee’s
detention and the
circumstances relating thereto…….the failure by a
police officer properly to do so is unlawful.
It seems to me that, if
a police officer must apply his or her mind to the circumstances
relating to a person’s detention,
this includes applying his
circumstances relating to a person’s detention, this includes
applying his or her mind to the
question of whether detention is
necessary at all. On the question of unlawful detention,
per se,
as a concept to be considered separately from the question of arrest.
See
Minister of Correctional Services v Tobani 2003 (5) S 126
(E):
[2001] 1 All SA 370
(E); Ralekwa v Minister of Safety and
Security; Louw v Minister of Safety and Security and Others; Charles
v Minister of
Safety and Security; Olivier v Minister of Safety
and Security and Van Rensburg v City of Johannesburg
[2007] ZAGPHC 276
;
2009 (1) SACR 32
(w); Mvu and Minister of Safety and Security and Another
2009 (2)
SACR 291
(GSJ).
(59)
The Constitution
accords everyone the right to freedom and security of the person,
which includes the right –
(a) not be deprived of
freedom arbitrarily or without just cause.
Section 35 of the
Constitution
provides detailed rights to arrested, detained
and accused persons, including the right to be released if the
interests of justice
permit and upon reasonable conditions, and to
humane conditions of detention.
(60) The mere
compliance with
section 40 (1) (b)
does not
automatically render plaintiff’s detention lawful.
Constitutional principles pertaining to rights of freedom and
dignity
oblige the court to consider and harmonise these with the lawfulness
or not regarding the plaintiff’s detention pending
trial. If
the plaintiff is not a flight risk, poses no danger to society, will
not interfere with the investigation, will stand
trail, detention is
ordinarily not an appropriate way of ensuring his attendance in
court.
(61) Kgoedi testified
that at Randburg Magistrate Court there is a policy that criminal
dockets submitted after 10am are not placed
on the roll. Despite this
unlawful injunction, Kgoedi took the plaintiff to court arriving
after the cut off time. Kgoedi detained
the plaintiff in the holding
cells and thereafter engaged the control prosecutor, made
representations regarding plaintiff’s
qualification to be
released on bail, and pleaded with him to place the matter on the
roll.
(62)
It is common cause that the control prosecutor unlawfully refused to
enrol the matter. The control prosecutor’s
irregular
refusal to enrol the matter, and the continuation of such an
omission, placed the fate of the plaintiff beyond the jurisdictional
purview of the court to determine whether the plaintiff ought to
detained or released on bail pending trial. Consequently, although
textually speaking the plaintiff’s detention was still within
the prescribed 48 hours, he was detained in the police holding
cells
with the intention of facilitating his appearance in court.
Consequently, the plaintiff’s detention was not effected
in the police station cells in pursuance of complying with
section
50 (3)
.
(63) Kgoedi did not after
the control prosecutor’s unlawful refusal to enrol the matter
return the plaintiff to the Douglasdale
Police Station, to be
detained pending his appearance in court on 30 May 2007, he persisted
in harbouring the notion that the control
prosecutor would be
persuaded to see reason and enrol the matter, consequently, when
external influence was exerted upon the control
prosecutor to enrol
the matter, although this was in fortification of the legal process
Kgoedi had set in motion, the plaintiff
was in the meantime
detained in the Randburg Magistrate Court holding cells despite there
being no certainty that the matter
would be enrolled to enable him to
be released on bail if it was in the interests of justice.
(64) In
casu
it
was most undesirable to detain the plaintiff inside the police
holding cells at Randburg Magistrate Court given that Kgoedi’s
motivation after arresting plaintiff was to present him to court in
order that he apply to be released on bail. The uncontroverted
common
cause evidence is that, the plaintiff is an attorney and a reputable
businessman, and not a flight risk, consequently, there
was no
compelling lawful reason to detain him in the police holding cells
pending his attendance in court.
(65) Correspondingly,
there was no rational connection between the detention of the
plaintiff in the police holding cells and the
purpose Kgoedi intended
to achieve, namely that the plaintiff expeditiously appear before a
magistrate and be released on bail.
Consequently, Kgoedi’s
exercise of his discretion in so acting was objectively not rational,
nor was it
bona fide
, and was under the circumstances was not
reasonable, and consequently was arbitrary and capricious.
(66)
The plaintiff was released in terms of
section 72 of “The
Act”
on warning. The plaintiff did not appear in court,
consequently, the very essence predicating his detention in the
holding cells
was not realised. It is this unreasonable negligent
conduct which makes the plaintiff’s detention unlawful.
(67) It is
illuminating that the
section 72
notice warning the
plaintiff to appear in court on 30 May 2007 was signed by Kgoedi who
as a non-commissioned officer, had no authority
to do so. Kgoedi’s
irregular conduct negates the very essence of the reason which
purportedly motivated him to take the plaintiff
to court, namely,
that only a court could release the plaintiff on bail. In my view,
Kgoedi’s grossly negligent conduct,
is conclusively indicative
of the unlawful detention of the plaintiff when there was no
certainty that after the 10am cut
off policy the plaintiff’s
matter would be enrolled. Only a commissioned police officer could on
29 May 2007 have released
the plaintiff from detention on a written
section 72
notice after the control prosecutor’s
failure to enrol the matter.
(68) Kgoedi reasonably
exercised his discretion in arresting the plaintiff in pursuance of a
lawful purpose namely to facilitate
his release on bail, but
paradoxically Kgoedi unlawfully detained the plaintiff in the holding
cells even though it was apparent
that the control prosecutor was not
amenable to enrolling the matter. Irrespective of the fact that
strictly speaking the
release of the plaintiff from detention on bail
was the prerogative of the court, Kgoedi by detaining the plaintiff
in the holding
cells in spite of this uncertainty, was no longer
acting in pursuance of the reason that motivated him the first place,
that is
to take the plaintiff to court in the first place.
(69) I turn to the
issue of quantum. The plaintiff is principally an attorney, and an
officer of court. To be detained in the Randburg
Magistrate Court’s
holding cells with awaiting trial prisoners and convicted criminals
under appalling conditions, the plaintiff
sustained embarrassment and
humiliation. In being detained the plaintiff was unreasonable
deprived of his liberty and dignity.
The plaintiff’s detention
from 10.15am to 3.30pm caused him anguish and trauma although he
suffered no further degradation
than his detention.
(70) The plaintiff has
also claimed payment of the amount of R5 015.00 in respect of legal
costs incurred in engaging an attorney.
In my view the plaintiff was
justified in engaging legal representation when it became apparent
that he was arrested and detained.
I have already found that
plaintiff’s detention in the holding cells was unlawful,
consequently, as he has partly succeeded
in these proceedings the
claim for legal costs must succeed.
(71) I agree that in the
assessment of damages the primary purpose is not to enrich the
aggrieved party but to offer him
solatium
for his or her
injured dignity and loss liberty.
See The Minister of Safety
and Security and M Tyulu [327/08] [2009] ZASCA SS (29 May 200).
It is trite that the award for damages in respect of the
plaintiff’s injuria cannot be calculated with mechanical
precision,
recourse must be had for guidance in previous similar fact
decisions.
See Minister of Safety and Security v Seymour
2006
(6) SA 320
(SCA) at paragraph [17]
(72) I was referred to
and have considered the following reported cases which were cited by
the plaintiff’s counsel as guidelines
in the assessment of an
appropriate damages award:
(a)
Louw v Minister
of Safety and Security
2006 (2) SACR 178
(T)
Bertelsman J;
(b)
Gellman v
Minister of Safety & Security
[2007] ZAGPHC 269
;
2008 (1) SACR 446
(W)
Saiduker J and Levenberg AJ;
`c)
Olivier v
Minister of Safety & Security
[2008] ZAGPHC 50
;
2008 (2) SACR 387
(W)
Horn
J;
(d)
Mvu v Minister
of Safety and Security and Another
2009 (2) SACR 291
(GSJ)
Willis
J; and
(e)
Minister of
Safety and Security v Sekhoto & Another
2010 (1) SACR
388
(FB) Hancke J, Kruger J and Van Zyl J
(73) Having considered
the circumstances of plaintiff’s detention, its nature and
duration, his social and professional status,
I am of the view that
an appropriate award for the plaintiff’s unlawful detention is
the amount of R50 000.00.
(74) In the premises the
following order is made:
The defendant is ordered
to pay the plaintiff –
(a) The sum of R50
000.00;
(b) The sum of R5 015.00;
(c) Interest on the
aforesaid sums at the prescribed rate from date of the judgment to
date of payment;
(d) Costs of suit on the
High Court Scale as between party and party.
Dated at Johannesburg on
the 7th March 2011.
MOKGOATLHENG J
JUDGE OF THE HIGH COURT
DATE OF HEARING: 9TH JUNE
2010
DATE
OF JUDGMENT: 9TH MARCH 2011
ON
BEHALF OF THE APPLICANT: MOODIE & ROBERTSON ATTORNEYS
INSTRUCTED
BY: MR MURRAY
REF.
No.: Mr Povall/km/M133131
TELEPHONE
NUMBER: (011) 403-5171
ON
BEHALF OF THE RESPONDENT: MR LEKABE
INSTRUCTED
BY: STATE ATTORNEY JOHANNESBURG
REF.
NO.: Mr D Lebenya/0354/08/P26/css
TELEPHONE NUMBER: (011)
330-7624