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2023
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[2023] ZAGPJHC 248
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Letsoenyo v Minister of Police and Another (A5018/2021) [2023] ZAGPJHC 248 (22 March 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
Case No. A5018/2021
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
DATE:
22 March 2023
In
the matter between:
MORENA
SHADRACK LETSOENYO
Appellant
and
MINISTER
OF POLICE
First
Respondent
MEMBERS
OF THE SOUTH AFRICAN
POLICE
SERVICES
Second
Respondent
JUDGMENT
WILSON
J (with whom MAKUME J and OPPERMAN J agree):
1
On 19 December 2011 the appellant, Mr. Letsoenyo, was arrested
at his home on suspicion of theft of a cell phone. On the way to the
police station, he exited a moving police car. Mr. Letsoenyo
sustained injuries to his right foot. The arresting officers took
him
to the Khutsong Clinic, from where he was transferred to the
Carletonville Hospital. The arresting officers apparently did
not
detain him at the hospital, which he left under his own steam after a
one-night stay, his right foot having by that time been
placed in a
cast.
2
Shortly after his release from hospital, Mr. Letsoenyo went to
the Carletonville Police Station to lay a charge of assault against
one of the arresting officers, a Sergeant Mapitsi. There, he was
apprehended again on the charge of theft, and taken back to Khutsong
Police Station. He was detained overnight. The Khutsong Magistrates’
Court released Mr. Letsoenyo on warning the next day.
3
Mr. Letsoenyo sued in the trial court for wrongful arrest and
assault. At trial, it was contended that there were two arrests: one
on 19 December 2011 at Mr. Letsoenyo’s home, and the other at
the Khutsong Police Station on 22 December 2011. It was said
that
both arrests were wrongful. It was also alleged that Mr. Letsoenyo
had sustained his foot injury because Sergeant Mapitsi
pushed him out
of the moving police car.
4
The trial court rejected all of Mr. Letsoenyo’s claims,
and dismissed his action with costs. The appeal against that decision
is before us with the trial court’s leave.
5
Before us, Mr. Letsoenyo persisted in his case that both of
the arrests he alleged were wrongful, and that he was unlawfully
assaulted
when Sergeant Mapitsi pushed him from the moving police
vehicle. He also argued that, even if it had not been established
that
Sergeant Mapitsi intentionally assaulted him, the arresting
officers nonetheless failed in their duty of care by allowing him to
exit the moving vehicle, at least insofar as they failed to lock the
door through which he left the vehicle, and insofar as they
failed to
handcuff him when he was placed under arrest. Those negligent
omissions, it was argued, were wrongful, and caused Mr.
Letsoenyo’s
injury.
6
In my view, none of Mr. Letsoenyo’s contentions can be
accepted, and his appeal falls to be dismissed. These are my reasons
for saying so.
The
arrest of 19 December 2011
7
Mr. Letsoenyo was arrested without a warrant on the authority
of section 40 (1) (b) of the Criminal Procedure Act 51 of 1977 (“the
Act”). It is trite that an arrest without a warrant under this
section is lawful if and only if the arrestor is a peace officer;
the
arrestor entertains a suspicion; that suspicion is that the arrestee
has committed an offence identified in Schedule 1 of the
Act; and
that suspicion rests on reasonable grounds (see
Duncan v Minister
of Law and Order
1986 (2) SA 805
(A) at 818G – H). In an
action for wrongful arrest, the onus of establishing these
requirements rests on the respondent,
the Minister.
8
Once these requirements are present, however, the arresting
officer retains a residual discretion, which must be rationally
exercised
in good faith. The onus of establishing that the arrest was
wrongful because of a failure to exercise that discretion, or a
failure
to exercise the discretion rationally and in good faith,
rests on Mr. Letsoenyo (
Minister of Safety and Security v Sekhoto
2011 (1) SACR 315
(SCA) (“
Sekhoto
”), paragraph
47). In the case of serious crimes, such as those listed in Schedule
1 of the Act, it will rarely, if ever,
be irrational or in bad faith
to arrest a suspect for the sole purpose of bringing them before
court (
Sekhoto
, paragraph 44).
9
Before us, it was accepted that the arresting officers were
peace officers, and that they entertained a suspicion that Mr.
Letsoenyo
had committed a Schedule 1 offence (theft being one of the
crimes listed in the Schedule). The decision to arrest Mr. Letsoenyo
was assailed on the basis that the arresting officers did not
reasonably suspect Mr. Letsoenyo of stealing the cell phone in issue,
and that, even if the arresting officers’ suspicion was
reasonable, the officers’ residual discretion not to arrest
Mr.
Letsoenyo was improperly exercised.
10
Mr. Letsoenyo was pointed out as the thief by the owner of the
cell phone said to have been stolen. The complainant took the police
to Mr. Letsoenyo’s home, and identified Mr. Letsoenyo. Mr.
Letsoenyo denied being the thief, but accepted that he was present
at
the complainant’s home when the cell phone went missing. Mr.
Mtembu, who appeared for Mr. Letsoenyo before us together
with Mr.
Khumalo, argued that the arresting officers’ suspicion that Mr.
Letsoenyo was the thief could not have been reasonable,
because they
failed to investigate the possibility that another person who was
present at the complainant’s home at the time
the cell phone
was stolen might have been the culprit.
11
I do not agree. There is a difference between a reasonable
suspicion and an accurate one. Even if Mr. Letsoenyo was not the
culprit
and the other person present at the complainant’s home
was the true thief, that does not make the arresting officers’
suspicion unreasonable. Faced with an apparently good faith complaint
by the victim of a crime who identified Mr. Letsoenyo as
the culprit,
and in circumstances where Mr. Letsoenyo’s presence in the
complainant’s home at the relevant time was
common ground, the
arresting officers’ suspicion was plainly reasonable.
12
That leaves the question of whether the arresting officers’
residual discretion was improperly exercised. I do not see how.
It
was suggested that there were other ways to secure Mr. Letsoenyo’s
attendance at court, but
Sekhoto
made clear that the
seriousness of a Schedule 1 crime in itself generally justifies an
arrest purely for the purposes of
securing the suspect’s
attendance at court.
13
It was also argued that the complaint ought to have been more
thoroughly investigated before Mr. Letsoenyo was arrested. We were
taken, in argument, to an extract from the investigation diary in
which a number of tasks, such as the taking of a further witness
statement and the electronic tracing of the stolen cell phone, had
been listed for the investigating officer’s attention.
What the
performance of these tasks would have yielded was not explored in
evidence or argument before the trial court, but it
was suggested
before us that these tasks ought to have been carried out before any
decision to arrest Mr. Letsoenyo was taken.
14
However, I do not think that the failure to carry out these
tasks meant that the decision to arrest Mr. Letsoenyo was taken
irrationally
or in bad faith. The arresting officers had a
complainant ready to identify the suspect, the location of their
suspect and, when
they confronted Mr. Letsoenyo, an admission that he
was present at the complainant’s home when the cell phone went
missing.
It is hard to criticise the rationality or the good faith of
Mr. Letsoenyo’s arrest in these circumstances.
15
There was, in reality, no basis for impugning the arresting
officers’ discretion pleaded or proved before the trial court,
and accordingly no basis for suggesting that the trial court was
wrong to conclude that the arrest of 19 December 2011 was lawful.
Mr.
Letsoenyo’s detention on 22 December 2011
16
It was argued that Mr. Letsoenyo’s apprehension at
Carletonville Police Station on 22 December 2011 constituted a
wrongful
arrest. I do not think that is correct. Arrest and detention
are not the same thing. The purpose of an arrest is to place a person
under legal constraint until such time as their case can be assessed
by a court or an appropriately empowered police official.
Once that
happens, the arrest comes to an end, and the legal status of the
erstwhile arrestee changes. The mere fact that an arrestee
is not
under the effective control of the police does not bring the arrest
to an end. The arrest is only brought to an end once
the arrestee is
unconditionally released, released on warning, bailed, remanded in
custody, convicted, acquitted or otherwise dealt
with according to
the applicable law.
17
In this case, the fact that Mr. Letsoenyo was apprehended at
Carletonville Police Station on 22 December 2011 does not mean that
he was arrested again. And if, as I have found, his arrest on 19
December 2011 was lawful, there was nothing unlawful about his
detention on 22 December 2011.
The
assault claim
18
The trial court, having heard all the evidence, having
considered the probabilities and having assessed the witness’
credibility,
found that Mr. Letsoenyo was not pushed out of the
police car after his arrest, but that he jumped out of the car in an
effort
to escape custody. Mr. Mtembu could not identify any basis on
which the trial court’s factual conclusions on this point were
vitiated by a legal mistake, or by a factual misdirection that would
entitle us to substitute our own factual findings for those
of the
trial court.
19
It follows from this that we must accept the trial court’s
conclusion that Mr. Letsoenyo caused his own injuries while trying
to
escape. The trial court noted that the arresting officers’
version that Mr. Letsoenyo jumped out of the car – and
was not
pushed – was left unchallenged by Mr. Letsoenyo’s
counsel. Wisely, that conclusion was not assailed on appeal.
The
trial court was clearly right to reject Mr. Letsoenyo’s
version.
The
duty of care point
20
It was finally contended that the police failed in their duty
of care by allowing Mr. Letsoenyo to jump from the car. That
obviously
in itself entails a concession that Sergeant Mapitsi did
not push him.
21
Be that as it may, this part of Mr. Letsoenyo’s case
appears to depend upon the assertion that the arresting officers were
negligent in failing to handcuff him and in failing to lock the door
through which he attempted to escape. We were pressed to conclude
that those negligent omissions were also wrongful, and were
accordingly the actionable cause of Mr. Letsoenyo’s injury.
22
The first problem with this case is that it was not pleaded.
Mr. Letsoenyo did plead that the arresting officers breached their
duty of care, but the contention underlying that allegation in Mr.
Letsoenyo’s particulars of claim was that Sergeant Mapitsi
pushed Mr. Letsoenyo out of a moving vehicle. A case based on a
negligent omission to secure the vehicle or Mr. Letsoenyo himself,
in
order to prevent Mr. Letsoenyo coming to any self-inflicted harm, is
nowhere in sight in Mr. Letsoenyo’s particulars of
claim.
23
That is not in itself fatal to considering and upholding such
a claim on appeal, if the matter was fully investigated at trial, and
if there is no unfairness to the Minister in entertaining the claim
at this late stage (see
Middleton v Carr
1949 (2) SA 374
at
pages 385 to 386). In this case, however, the matter was far from
fully investigated. A case based on a negligent omission entails
establishing that the defendant had a duty to act. In these
circumstances, a duty to act only exists if the failure to act was
unreasonable (
Minister van Polisie v Ewels
1975 (3) SA 590
(A)).
24
The issue of whether it was unreasonable in all the
circumstances not to handcuff Mr. Letsoenyo and to leave the car door
unlocked
was not fully explored before the trial court. The
reasonableness of the arresting officers’ conduct in a case
like this
is plainly a very fact-sensitive issue, on which detailed
evidence would have to have been led. Not only was that evidence not
led, but there was scant indication before closing argument in the
trial court that this would be Mr. Letsoenyo’s case. Mr.
Letsoenyo’s case was always that he had been pushed out of the
car, not that he had been wrongfully and negligently allowed
to jump.
25
Of course, in a proper case, it is conceivable that the
Minister might be held liable for an arresting officer’s
negligent
failure to prevent an arrestee from harming themselves. But
this is not that case. The evidence was not led to sustain it, and
the consideration of the case on appeal would be grossly unfair to
the Minister, who was given wholly inadequate warning that he
would
be required to meet it.
Order
26
It follows from all this that the trial court was correct to
dismiss Mr. Letsoenyo’s claim. The appeal is likewise dismissed
with costs.
S
D J WILSON
Judge
of the High Court
HEARD
ON: 1 February 2023
DECIDED
ON: 22 March 2023
For
the Appellant: AM
Mtembu
BM Khumalo
Instructed
by: Mamathuntsha
Inc
For
the First Respondent: T
Mabuza
Instructed
by: the
State Attorney