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[2010] ZAGPPHC 14
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Motsei v Minister of Safety and Security (A1174/2006) [2010] ZAGPPHC 14 (4 March 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case
no: A1174/2006
In
the matter between:
JAN
MOTSEI
APPELLANT
And
THE
MINISTER OF SAFETY AND
SECURITY
RESPONDENT
JUDGMENT
POSWA,
J
[1]
In
this appeal against the judgment of the Magistrate, Wonderboom,
Pretoria North, the appellant had brought a civil action against
the
respondent, claiming damages in the amount of R100 000.00, arising
out of an alleged unlawful arrest by members of the South
African
Police Services, more specifically, Constable
David
Vusi Maluleka, on 14 December 2005. It is common cause that Constable
Maluleka arrested the appellant at the Sinoville Police
Station, at
about 18:20. It was also common cause during the hearing that the
respondent bore the
onus
to
justify the appellant's arrest by Constable Maluleka.
[2]
Having found that the respondent had failed to discharge the
onus
he
bore, the Magistrate, nevertheless, dismissed the appellant's claim,
with costs. Hence this appeal. The appellant was represented
before
us by Mr Grant, whilst Mr Kriel appeared for the respondent. Neither
of them was involved during the proceedings before
the Magistrate's
court.
[3]
Although the respondent did not appeal against the Magistrate's
finding that he had not discharged the
onus,
Mr
Kriel submitted before us that the finding was incorrect and informed
the Court that the respondent was appealing against it.
Counsel
relied, for the respondent's approach, i.e. appealing against the
Magistrate's finding without having filed a counter-appeal,
on the
decision in
Sentrale
Kunsmisverspreiders (Edms) Bpk
1970
(3) SA 367
(A). Indeed, the Appellate Division ruled, in the latter
judgment, that it is not necessary to file a cross-appeal where the
party
thus appealing is not, thereby, seeking a variation of the
order of the court
a
quo.
(395F-396A.)
[4]
I now deal with the facts of the case. The entire purpose of the
special duties operations on that occasion was for the police
to
arrest persons suspected of committing petty crimes, such as
urinating in public, drinking in public, gambling in public and
being
drunk in public. Justification for the arrest of these petty
offenders is given by Constable Maluleka as follows:
"[These
petty crimes] have an impact on serious cases that we concentrate on,
cases like house robberies, house break-ins,
murder, rape and stuff
like that. If we
arrest
more
people for those petty crimes, they have an impact on the crimes that
I have mentioned now, they go down because most of the
suspects that
go to break those houses, they first get drunk in the public areas
and thereafter, later in that day or in the afternoon,
then they go
and commit those crimes.
(Emphasis
added.)
It
will be observed that "arrest" of petty offenders was part
of the modus operandi of the police team in pursuit of their
main
mission, control of commission of serious crimes. There is no mention
of wanting to bring those arrested for "petty crimes"
before courts, for trial.
[5]
The appellant's friend, Mr Paulos Motlau, was arrested during the
operation, outside Pick 'n Pay, at the Sinoville Shopping
Centre,
that late afternoon or early evening, and taken to the Sinoville
Police Station. The appellant was later arrested at the
police
station, at a time when Constable Maluleka was busy with
administrative aspects at the charge office, regarding Mr Motlau's
detention, subsequent to the latter's arrest. Although it is not
pertinently admitted by the respondent, the evidence of both the
appellant and Mr Motlau, that they were together at the shopping
centre prior to Mr Motlau's arrest, that the appellant left Mr
Motlau
at the shopping centre and that he had just returned to the shopping
centre when Mr Motlau was arrested, is uncontested.
[6]
There are disputes in respect of the following aspects:
whether
the appellant and Mr Motlau consumed liquor at the shopping centre
or anywhere else prior to the arrival of the police;
whether
the appellant and Mr Motlau were drunk at the time of the arrival of
the police, during Mr Motlau's arrest at the shopping
centre and;
what
transpired on the appellant's arrival at the police station, after Mr
Motlau had been conveyed thereto by the police.
[7]
Although it is the respondent's version that Constable Maluleka was
one of many police officials at the shopping centre when
Mr Motlau
was arrested, the defendant chose to rely on the evidence of only
Constable Maluleka, for reasons unexplained. On his
part, the
plaintiff relied on his own evidence and that of Mr Motlau.
[8]
In his judgment, the Magistrate, when dealing with the question of
the
onus
borne
by the defendant, said the following at page 48:
"Wat
die verweerder se saak betref kan die hof nie net die eedsverklaring
"Bewysstuk enigsins miskyk of ignoreer nie.
Die verweerder
nie skuil agter
n
verduideliking
dat hulle baie besig was en dat daardie korrekte pro-forma vorms dan
nou nie daar was nie en hy nie werklik goed
in Afrikaans is nie en
dat hy dan nou lateraan
n
tweede
verklaring gemaak het nie. As
n
Suid-Afrikaanse
polisiebeampte moet hy weet en het hy dit ook so erken, dat hy weet
indien hy
n
eedsverklaring
afle dat dit net die waarheid moet bevat en hierdie verklaring strook
dan nie met die getuienis vanoggend nie en
waaroor hy dan die eiser
gearresteer het, naamlikvir dronk in die openbaarnie".
[9]
My understanding of this paragraph, in summary, is that the
Magistrate did not accept the respondent's explanation of the
conflict
between the contents of Exhibit 'A' - to the effect that the
appellant was arrested for drinking in public -and his evidence in
court - that he arrested the appellant for being drunk in public,
i.e. at a police station, and that he informed him so. The Magistrate
did not accept Constable Maluleka's explanation for that discrepancy,
viz. that they, the police, were too busy and that he did
not,
therefore, find the appropriate
pro
forma
form
for someone who is drunk in public and that he, consequently, used
the form for drinking in public. The Magistrate similarly
did not
accept Constable Maluleka's excuse, regarding his inadequate
knowledge of Afrikaans being the reason for using the incorrect
form.
It is, indeed, a contradiction, in my view, for Constable Maluleka to
suggest that, time permitting, he would have used the
appropriate
form and to yet claim that it is his inadequate knowledge of
Afrikaans that caused the use of an inappropriate form.
[10]
Because the respondent bore the
onus
to
justify the arrest, he also had the duty to begin adducing evidence.
Consequently, Constable Maluleka was the first witness to
give
evidence before the Magistrate. Mr Grant submits, on the appellant's
behalf, that the Magistrate correctly found that the
respondent
failed to discharge the
onus
and
that he, therefore, failed to justify the plaintiff's arrest. In the
circumstances, so is it submitted by Mr Grant, the Magistrate
should
have dismissed the action, regardless of the nature of the evidence
given by the appellant and Mr Motlau.
[11]
Mr Kriel, on the respondent's behalf, submits that the Magistrate's
finding that the respondent failed to discharge the
onus
is
incorrect. Consequently, he submits that the Magistrate's dismissal
of the appellant's claim, based on contradictions between
the
plaintiff and Mr Motlau, is correct.
THE
LAW
[12]
Quite clearly, the answer as to which of the two submissions is
correct will be found in the applicable law with regard to
arrest
without a warrant. Section 40 of the Criminal Procedure Act 51 of
1977 ("the Act") authorises a peace officer
to effect an
arrest without a warrant, if a person, commits an offence in his or
her presence if the peace officer has a reasonable
suspicion that an
offence referred to in Schedule I has been committed (s 40 (1) (a)).
Arrest without a warrant is an area of extreme
conflict in various
courts in the country, especially in this Division, the TPD and the
WLD. Before dealing with some of the relevant
cases, I shall,
briefly, set out the background and facts in the context whereof this
case must in, my view, be discussed.
Facts
[13]
It is, in my view, not necessary to deal with facts with a view to
determine whether there are, indeed, material factual contradictions
between the appellant's and that of his friend and witness, Mr
Motlau. It is common cause that Constable Maluleka arrested the
appellant and that the respondent bore the onus to justify his
arrest. Had there been no conflict in the respondent's version as
to
the reason for the arrest and if the case against the appellant had
not been withdrawn, the appellant might have been under
an evidential
duty to give his own version as to how he got to be arrested. His
evidence, on the one hand, and Mr Motlau's, on
the other hand, would
then have required scrutiny. In that event, material contradictions
in their evidence might have had a bearing
on whether or not the
respondent had discharged the
onus
of
justifying the appellant's arrest. It makes no difference, in my
view, whether there are contradictions or otherwise in the between
the appellant and Mr Motlau if the respondent cannot justify the
appellant's arrest.
[14]
If the respondent has not discharged the onus they bear, the
appellant need not have given evidence on the question as to whether
or not his arrest was justified. It would have been sufficient, in my
view, if he merely confirmed, in evidence, that he is the
plaintiff
and that he was arrested by Constable Maluleke. It is not required of
him to prove lack of justification. Nothing can
be said by an
arrested person in such circumstances to cure defects in the Minister
of Safety and Security's case, once the latter
has failed to justify
the arrest. In such circumstances, if a plaintiff gives evidence,
trying to demonstrate that he or she was
unjustifiably arrested, as
happened in the instant case, the trial court cannot non-suit him or
her on account of contradictions
of the nature raised in the present
case on the ' behalf. A discussion of applicable legal principles in
cases of arrest without
a warrant and some provisions the
Constitution of the Republic of South Africa, 1996 ("the
Constitution") should illustrate
this point.
The
Law
[15]
It has always been the approach of the courts in this country, long
before 1994, that the freedom of person, the liberty of
every
individual
(harbeus
corpus)
was
of the utmost importance (see
Minister
of Law and Order v Hurley
1986
(3) SA 568
(A);
Minister
van Wet en Order v Matshoba
1990
(1) SA 280
(A), at 291294). In
Brand
v Minister of Justice and Another
1959
(4) SA 90
(A), referring to an arrest without a warrant, it was
stated that the
onus
is
on a peace officer who relies on the statute, in this regard, to
establish that an offence was, indeed, committed in his presence.
In
Minister
of Justice v Hofmeyr
1993
(3) SA 121
(A) the following is stated on page 153:
"The
plain
and fundamental rule is that every individual's person is inviolable.
In actions in damages for wrongful arrest or imprisonment
our Courts
have adopted the rule that such infractions are
prima
facie
illegal.
Once the arrest or imprisonment has been admitted or proved it is for
the defendant to allege and prove the existence of
grounds in
justification of the infraction".
(See
also,
Tsose
v Minister of Justice and Others
1951
(3) SA 10
(A)).
[16]
The Constitution, which took over from the Interim Constitution (the
Constitution of the Republic of South Africa, 200 of 1993),
specifically stipulates, on the freedom and security of the person,
as follows, in s 12(1)(a) and (b);
"12(1)
Everyone has the right to freedom and security of the person,
which includes the right
(a)
not to be deprived offreedom arbitrarily or without just cause;
(b)
not to be detained without trial."
[17]
The importance of the freedom and security of the person is further
illustrated in s 35(1)(f) of The Constitution, where
the following is
stated:
"35(1)
Everyone who is arrested for allegedly committing an offence
has the right:
(f)
to be released from detention if the interests of justice permit,
subject to reasonable conditions."
The
effect of section 35(1)(f) is that every arrested person, except one
arrested in respect of a Schedule 6 offence, has
a
right to be released from detention,
if
in the interests of justice so permit. It was held, in this regard,
that the
onus
of
showing that the interests of justice do not permit the release of an
arrested person is on the State or the Police.
(S
v Dlamini, S v Dladla and Others; S v Joubert; Skietekart
1994
(4) SA 623
(CC.)
[18]
In that case
(Dlamini),
the
Court stated,
inter
alia,
the
following, at [53] 658F-G;
(a)
Section
35(1)(7) of the Constitution "presupposes a deprivation
of
freedom by arrest that is constitutional.
(b)
Referring
to circumstances under which an arrested person may be denied
bail,
the Court pointed out that a risk that the detainee will commit a
fairly
serious offence can be taken into account. The Court
emphasised in that
regard that:
"The
important proviso throughout is that there has to be a likelihood,
i.e., a probability, that such risk will materialise.
A possibility
or suspicion will not suffice. Absent a proper
basis
for
the original arrest, it (detention) will be set aside"(emphasis
added.)
Whilst
Dlamini
is
about bail principles, where justification of the arrest is not in
issue, sentiments expressed therein concerning justification
for
continued detention of the arrested person provide, in my view, a
good illustration of the importance attached to of a person's
liberty
and the need to justify deprivation thereof.
[19]
Although
s 40
of the
Criminal Procedure Act has
not been amended
after the enactment of both the Interim Constitution and the
Constitution, the interpretation thereof must, in
my view, now be
influenced by the provisions of the sections of the Constitution that
I have mentioned, s 12(1)(a) and (b) and
s 35 (1)(f), respectively.
In this regard it must be borne in mind that, in s 2 of the
Constitution, under the heading "Supremacy
of Constitution",
the following is enacted:
"2
The
Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid, and the obligations imposed
by it
must be fulfilled."
I
am of the view that case law that precedes the Interim Constitution
must, similarly, be interpreted with this in mind. In this
regard, I
find myself in full agreement with sentiments expressed by
Bertelsmann, J, in
Louw
v Minister of Safety and Security
2006
(2) SACR 178
(T) at 185b-187e, where he also quotes, with approval, a
passage from the judgment of De Vos, J, in
Ralekwa
v Minister of Safety and Security
2004
(1) SACR 131
(T), [9] and [11]-[12]. Although Bertelsmann, J quotes
only the first sentence of para [12], it is evident from his judgment
that
he agrees with all that De Vos J says in that paragraph,
including her reliance on
S
v Makwanyane and Another
1995
(6) BCLR, at para [156]. So do I.
[20]
In the present case, the appellant and Mr Motlau were detained at the
police cells, overnight, and appeared in the Magistrate's
Court the
next morning. It is common cause that the public prosecutor withdrew
the charges in respect of each of them, without
there being any
explanation for that course. Mr Kriel, on the respondent' behalf,
conceded that the respondent could not explain
why the charges were
withdrawn. He submitted, however, that the withdrawal should not
affect the question as to whether or not
Constable Maluleka was
justified in arresting the appellant and, subsequently, causing him
to be detained. Even if the public prosecutor
came to the conclusion
that available evidence could not support conviction of the
appellant, that, so submitted Mr Kriel, did
not necessarily render
the arrest unlawful. There is some authority in support of that
proposition, in
Minister
of Justice and Others v Tsose
1950
(3) SA 88
(T). In that case, Malan, J says the following at 92 - 93:
"If
a peace officer, as a result of observations, honestly and reasonably
comes to the conclusion that a crime is being committed,
he
may
act upon such opinion or belief even though in subsequent
proceedings,
whether
civil or criminal,
it
is not proved that a crime was in fact committed."
(Emphasis
added.)
[21]
In
Tsose
v Minister of Justice and Others
1951
(3) SA 10
(A),
supra,
however,
the Appellate Division (as it then was), hearing an appeal against
Malan, J's above decision, stated the following at 18C-H:
"As
I
have indicated above, the Transvaal Provincial Division held that,
even if no offence was committed in the presence of Sergeant
Gentle,
the tenth respondent who effected the arrest on 21
st
and 23
rd
July 1949, the arrests were nevertheless legal because the sergeant
'entertained the honest and reasonable belief that at the time
of the
arrest the law was being contravened'. This proposition was not
supported by counsel for the respondent in this Court and
it is
sufficient to say that the English decisions, on which Malan J
relied, are not authority for any generalisation that in English
law
an honest and reasonable belief that the law is being contravened
justified an arrest without warrant. The scope of each statute
relied
upon as rendering an arrest lawful must be deduced from the language
of each provision read in their proper context.
(See
Barnard and Another v Gorman
1941
AC 378).
The
context here is the codification of a piece officer's powers in
Sections 26 and 27 which specifically and especially authorise
arrest
on reasonable suspicion in certain cases only. Those sections make
ample provision for summary arrest where there is danger
that a
suspected wrongdoer may disappear and so escape prosecution. In the
present case
if
no offence was committed in the presence of sergeant Gentle, the
arrests were unlawful."
(Emphasis
added.)
[22]
In our country, with its history of the obnoxious detention without
trial in political cases, the notion of a suspect being
arrested and
detained and then being simply released in court without much more
is, to say the least, revolting. Section 35 of
the Constitution
contemplates three phases to be ordinarily undergone by a suspect who
gets confronted by the police, viz., (a)
lawful arrest, (b) lawful
detention and (c) trial as an accused person.
[23]
According to s 35(3), every accused person has the right to a fair
trial, which includes categories itemised in paragraphs
(a) to (o) of
that sub-section. It is the court, and not the police, that ensures
that an accused person has a fair trial. In that
regard, the manner
in which the accused person has been handled by the police, from the
time they confront him or her, and the
manner in which he or her is
detained by those keeping him or her in detention after his or her
arrest is relevant in determining
whether or not the accused person
has had a fair trial or otherwise (Cf.
The
State and Pike Raymond Hlongwane and Others,
Case
no: A2093/03 (unreported decision of the TPD, dated 17 May 2005), at
pages 1415.) Consequently, it is, for example, important
to know
whether he or she was "informed promptly of the reason for being
arrested" (s35(2)(a)), or has been informed
of his or her right
to remain silent (s35(1)(a) and (c)), or whether he or she was
brought before court, "as soon as reasonably
possible",
within 48 hours after his or her arrest, (s35(1)(d)), to mention just
some of the rights of an arrested person
according to s 35(1) and (2)
of the Constitution. Where the case against an accused person who was
in custody is simply withdrawn,
without much more, the court cannot
determine whether his or her constitutional rights were observed up
till then. Such rights
include the question whether or not the
accused person's arrest was justified.
[24]
A police official who comes to the conclusion, after an honest
assessment of the circumstances surrounding his or her encounter
with
a suspect, that the only way in which to deal with the suspect is to
have him or her arrested, in order to bring him or her
to the charge
office, must, in my view, as soon as possible on arriving at the
police station, consider the question whether or
not further
detention of the suspect is necessary. If, having made such an
assessment, he or she is not certain that a
prima
facie
case
exists against the suspect, the police official should immediately
release him or her (See, in that regard,
Duncan
v Minister of Law and Order
1986
(2) SA 805
(A), at 821G-I.) .
[25]
That a police officer who encounters a suspect is the person to
determine whether or not the officer's powers of arrest under
s 40 of
the Act should be resorted to, is evident from the following passage
in the
Minister
of Safety and Security v Van Niekerk
2008
(1) SACR 36
(CC), at [18], 61g-62a, which reads:
"[18]
Furthermore,
those
involved in the day-to-day exercise and supervision of the power to
make arrests are usually best positioned to establish
appropriate
operational parameters concerning the discretion to arrest."
[26]
It would, in my view, be incongruous if it made no difference that
one was arrested and possibly also detained when, in fact,
he or she
had committed no offence, simply because the police officer concerned
had honestly, but mistakenly, assumed that an offence
had been
committed. Hence the conclusion by the in AD, in
Tsose
(supra),
that:
"if no offence was committed ... the arrests were unlawful."
(Cf. also
Dlamini
(supra)).
Moreover,
as I have already indicated, it is important, once an accused person
has been brought before court, to allow the court
to determine
whether or not he or she has gone through a fair trial process, from
the time of arrest.
[27]
If, therefore, the public prosecutor decides to withdraw the charge
or charges against him or her, the court, should, in my
view, know
why that is so, especially as to why he or she had, in the first
place, been deprived of his or her liberty. (For a
full discussion of
the provisions of s 12 (1) of the Constitution, see
Bernstein
and Others v Bester and Others NNO
1996
(2) SA 754
(CC)), at paras 145-147;
S
v Coetzee and Others
[1997] ZACC 2
;
1997
(3) SA 527
(CC), at para [159];
De
Lange v Smuts NO and Others
[1998] ZACC 6
;
1998
(3) SA 785
(CC), at paras 17-28, (the judgement of Ackermann, J).
[28]
Section 12(1) of the Constitution that raises two aspects, viz (a)
reasons for which the state may deprive one of his or her
freedom and
(b) the method of depriving one of one's freedom where it is
appropriate to do so. It is, by now, trite that the state
may not
deprive a citizen of his or her liberty for reasons that are not
acceptable and that it may not, when it deprives one of
freedom for
acceptable reasons, do so in a manner which is procedurally unfair.
(Bernstein,
paras
[145]-[147].)
[29]
It appears to me that Bertelsmann, J, had,
inter
alia,
the
above in mind, when, in
Louw,
supra,
he
said the following at 186b:
"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 I
of Act 51 of 1977
has allegedly been committed and even if the arresting police
officers believes on reasonable grounds that such
a crime has indeed
been committed, this in itself does not justify an
arrest
forthwith"
(emphasis
added.).
[30]
In
Charles
v Minister of Safety and Security
2007
(2) SACR 137
(W), at 143j -144e Goldblatt, J, totally disagrees with
sentiments expressed by Bertelsmann, J and his decision in
Louw.
He
expresses himself thus, in that regard:
"Before
an arrest can lawfully be exercised, the reasonable suspicion that a
Schedule 1 crime has been committed must be considered
by a
reasonable investigating officer, and it must be considered whether
the suspect will attend the court hearing if summonsed
or warned.
Only if there are reasonable grounds to suspect that the suspect will
abscond if an application for a warrant is first
made may the power
contained in s40 of Act 51 of 1977 be exercised.
I
do not believe that this places an undue burden on the police. It
requires no more than an honest exercise of their duties. If
they
bona fide fear that a suspect will evade justice, then an arrest is
obviously the correct option.
But,
by the same token, this test makes an arrest
ultra
vires
when
exercised against a suspect under circumstances where the suspect is
perfectly willing to come to court on warning, on notice
or summons.
I do not agree with the conclusion reached by Bertelsmann J, despite
his full and careful reasons therefor and am of
the view that it is
clearly wrong.
In
my view the final sentence of the quotation from Schreiner JA in
Tsose's
case
supra
quoted
by Bertelsmann J correctly sets out the existing law. The learned
Judge of Appeal said:
'But
there is no rule of law that requires the milder method of bringing a
person into court to be used whenever it would be equally
effective.'
The
Legislature having granted a peace officer the right to make an
arrest in the circumstances set out in s 40 has created a situation
where
due
compliance with such section
by
a peace officer is lawful and affords such peace officer protection
against an action for unlawful arrest. In my view, the court
has
no
right to impose further conditions on such persons.
To
do so would open a Pandora's box where the courts would be called
upon in cases of this type to have to enquire into what is
reasonable
in a variety of circumstances and further
where
peace officers would be called upon to make value judgments
every
time they effect an arrest in terms of s40. These judgments which
they would have to make would later have to be considered
and tested
by judicial officers attempting to place themselves in the shoes of
the arresting officer.
While
s 40 exists in its present form it offers protection to those who
legitimately rely upon it. Obviously the position will be
different
if the action of the policeman is
mala
fide
or
an abuse of the right given to him, but I need not deal with the
possible exceptions, as they do not arise in the present case
(see
Duncan
v Minister of Law and Order
1986
(2) SA 805
(A) at 818G-819B.) "
[31]
Before discussing the conflict between
Louw
and
Charles,
I
find it necessary to quote in detail what Schreiner, JA said in
Tsose,
supra, at 17C-G:
"If
the object of the arrest, though professedly to bring the arrested
person before the court, is really not such, but is
to frighten or
harass him and so induce him to act in a way desired by the arrestor,
without his appearing in court, the arrest
is, no doubt, unlawful.
But if the object of the arrestor is to bring the arrested person
before the court in order that he may
be prosecuted to conviction and
so may be led to cease to contravene the law the arrest is not
rendered illegal because the arrestor's
motive is to frighten or
harass the arrested person into desisting from his illegal conduct.
An arrest is not unlawful because
the arrestor intends and states
that he intends to go on arresting the arrested person till he stops
contravening the law if the
intention always is after arrest to bring
the arrested person duly to prosecution. In such a case the only
remedy of the arrested
person would be an action for malicious
prosecution in which he would have to prove not only an improper
motive but also the absence
of reasonable cause for the prosecution.
An
arrest is, of course, in general a harsher method of initiating a
prosecution than citation
by
way of summons
but
if the circumstances exist which make it lawful under a statutory
provision to arrest a person as a means of bringing him to
court,
such
an arrest is not unlawful even if it is made because the arrestor
believes that arrest will be more harassing than summons.
For
just as the
best
motive will not cure an otherwise illegal arrest
so
the
worst
motive
will
not render an otherwise legal arrest illegal"
(emphasis
added.)
[32]
The learned judge of appeal went on to quality his statement as
follows, at 17H;
"What
I have said must
not
be understood as conveying approval of the use of arrest where there
is no urgency and the person to be charged has a fixed
and known
address;
in
such cases it is generally desirable that a summons should be used.
But
there is no rule of law that requires the milder method of bringing a
person into court to be used whenever it would be equally
effective."
[33]
It seems to me appropriate to interpret Shcreiner, JA's remarks, with
regard to there being no rule that a less invasive way
of bringing a
person before court, other than arrest, be resorted to whenever
possible, in the context of the intervention of the
constitutional
dispensation that was ushered in in 1994. I have already stated that
I am of the view that regard must be had to
that significant change
in the jurisprudence of our country. Section 2 of the Constitution,
in particular, must, in my view, be
borne in mind when interpreting
decisions made before the coming into being of the Interim
Constitution and, later, The Constitution.
In light thereof and of
the provisions of s 12 and s 35 of The Constitution, it must, in my
view, now be the approach of any police
official who deals with a
suspect to consider the question as to whether or not there is not a
less invasive method of bringing
the person to the police station,
where it is genuinely the intention of the police official to have
the suspect questioned relatively
early. The provisions of any
statute, including
s 40
of the
Criminal Procedure Act, are
subject to
the provisions of the Constitution, because the Constitution is the
supreme law of the country (s 2 of the Constitution).
This, in my
view, is the answer to Goldblatt, J's concern, in
Charles,
about
a court imposing a further qualification to that provided by s 40 of
the Act. Besides that being what, in my view, The Constitution
ordains, I do not regard that requirement as overburdening both the
arrestor and the court that is called upon to determine whether
the
arrest was justified or otherwise.
[34]
Even if the Schreiner, JA's dicta, on there bring no rule of law
requiring a "milder method" than arrest, remains
good law,
it is clear that he, and, therefore, the AD, preferred the use of a
summons where there is a fixed and known address.
Goldblatt, J,
himself, says that the arrest of a suspect who is willing to come to
court is
ultra
vires.
[35]
I therefore, find myself in respectful disagreement with Goldblatt,
J's judgment in
Charles.
I
am of the view that it is clearly wrong. It follows that I agree with
Bertelsmann J's judgment view in
Louw.
(See
also
Olivier
v Minister of Safety and Security and Another
2009
(3) SA 434
(W) in which Horn, J allies himself with the approach in
Louw).
It
should, in my view, now be the norm that a suspect be ordinarily not
arrested, in order to bring him or her to the police station
or
before court, when there is a less invasive method of ensuring that.
Such alternative measures include issuing the suspect with
a summons,
where that is reasonably possible. Whether it is reasonably possible
to do that must be determined on the facts of each
case. It is, in my
view, the function of every police official who arrests someone to,
not only to prove that he or she honestly
believes that an offence
has been committed but also to, establish and state that arrest was
the only option available to him or
her to bring the suspect before
court. (See
Seria
v Minister of Safety and Security and Others
2005
(5) SA 130
(C). in that case, Meer, J, comments with regard to an
arresting officer choosing to arrest a suspect, instead of warning
him to
appear in court. The arresting officer, dealing with a husband
who had contravened a protection order issued in terms of the
Domestic Violence Act 106 of 1998
, chose to act under s 8 (4)(d) of
the Act, thus arresting the plaintiff, instead of acting under s 8
(4) (c), which would have
entailed merely handing the plaintiff a
summons to appear in court, to answer the charge of contravening the
protection order.
That decision appears to be in conflict with
Goldblatt's sentiments in
Charles.
[36]
In the present case, it is clear that the only or primary purpose for
arresting the persons found outside the Pick 'n Pay Supermarket,
by
Constable Maluleka and his colleagues, was to forestall their being
involved in the commission of more serious crimes, which
are usually
committed by people who have committed lesser crimes, such as
drinking or being drunk in public. I find it odd that
one should be
arrested, not so much for the "petty offence" he or she has
allegedly committed, viz, drinking or being
drunk in public, but
merely because the lesser offence makes him or her a candidate for
commission of a more serious offence, which
he or she may commit.
That object perhaps explains why the charge against the appellant was
withdrawn at court. It was probably
never the intention of the police
to have him tried.
[37]
Constable Maluleka nowhere mentions that the purpose of arresting the
persons who were arrested outside Pick 'n Pay was to
have them
brought before court, as a way of discouraging commission of such
petty offences. In the light of my finding that the
Magistrate
correctly held that Annexure "A" contains the reason chosen
and given by Constable Maluleka for the appellant
was arrested for a
petty crime. Constable Maluleka never entertained the question as to
whether the appellant would or would not
have attended court if he
had been given a summons requiring him to do so. Let me repeat that I
am of the view that the Magistrate
correctly held that the respondent
failed to prove that the appellant was arrested for being drunk in
public, contrary to what
Constable Maluleka stated in his evidence.
The official reason for his arrest, as stated in Annexure "A",
is drinking
in public, from which reason Constable Maluleka distanced
himself. That, therefore, leaves his arrest without a reason and thus
without justification. The respondent failed to discharge the
onus
of
justifying the arrest.
[38]
Another important consideration, in my view, apart from the
appellant's liberty, is that prisons and police stations are filled
with offenders or would-be offenders who should not have been
incarcerated, in the first place. Pages 12 and 13 of the occurrence
book, the "FIRST INFORMATION OF CRIME" book, concerning 14
December 2005, (which is on pages 40 and 41, respectively,
of the
paginated papers), for instance, contains no less than 22 names of
persons who were incarcerated for either drinking or
being drunk in
public. In all probability, they are more than the number I give
because the portion that indicates the purpose
of detention, on page
14 of that, book is illegible. This consideration is not, however,
the reason for my judgment. I merely point
out the impropriety of
filling police cells with so many petty offenders.
[39]
Everything else I have said above notwithstanding, I find it
difficult to fault the Magistrate's reasons for finding that the
respondent failed to discharge the
onus
of
establishing justification for the appellant's arrest. There is no
doubt that the police, including Constable Maluleka, were
of the view
that there is a difference between drinking in public, on the one
hand, and being drunk in public, on the other hand.
As already
pointed out, Constable Maluleka was adamant that the appellant was
not arrested for drinking in public. That is the
end of the story.
Even if, therefore, the approach adopted in
Charles,
is
the correct one, it does not avail the respondent in the present
case.
[40]
An important aspect was omitted by both parties, in their pleadings,
in their heads of argument and in their submissions before
us. That
is the fact that the offence of drinking in public or being drunk in
public, for that matter, is not listed in Schedule
1. I can think of
no reason why this Court may not,
mero
motu,
take
that into consideration, either alone or in addition to other
aspects. I agree with Zilwa, AJ's emphasis, in
Mhaga
v Minister of Safety and Security
2001
(2) All SA 534
, that a peace officer must not only have a reasonable
suspicion that an offence has been committed, but that it must be a
Schedule
1 offence. (See also
Charles,
at 143j.
Consequently,
the appellant should, in my view, have succeeded in his claim even on
this basis alone.
[41]
In the circumstances, I am of the view that the appellant's appeal
should succeed and that the respondent's cross-appeal should
fail.
The Magistrate's judgment should, therefore, be upheld with regard to
the respondent having failed to discharge the
onus
and
be set aside with regard to the appellant having failed in his claim.
Quantum
[42]
In view of his approach and his conclusion with regard to the
appellant's claim, the Magistrate did not deal with quantum.
Both
counsel submitted, correctly in my view, that this Court is at large
to deal with that aspect. Both counsel addressed the
Court
accordingly.
[43]
In his supplementary heads of argument, Mr Kriel referred to a number
of decisions, on the basis whereof he submitted that
the appellant
should, in the event of his appeal being successful and that of the
respondent being unsuccessful, be awarded R5000-00
damages. The cases
referred to are those of
Ngcobo
v Minister of Police
1998
(4) SA (D) where, the plaintiff was awarded R1500-00, having been in
custody for three days, which amount would, today, according
to Mr
Kriel, be R9400-00;
Todt
v Ipser
1993
(3) SA (A), where the appellant was awarded R4000-00 (R13000-00,
today), having been detained overnight;
Mthimkhulu
and Another v Minister of Law and Order
1993
(3) SA 432
(E), where two plaintiffs were each awarded a total of
R40, 000-00, having each been detained for a total of one hundred and
forty
four (144) days. That evidently means to that each was awarded
about R2, 700-00 for each day spent in custody.
[44]
In
Olivier,
the
plaintiff, a highly placed police officer, was arrested in full view
of his colleagues. His office was searched, so also his
home, in his
presence and in front of his wife and children. He was detained for
five (5) to six (6) hours, in all, was not placed
in the police cells
or handcuffed. In awarding damages, the Court stated that, having
regard to the facts of the case, as well
as to previous awards in
similar matters, an amount of R50 000, 00 was fair to all parties. In
an unreported judgment of this Court,
Francina
Maria Killan v minister of Safety and Security,
Case
No. 2605/05, Southwood, J awarded the plaintiff R50 000,00. She was
arrested in broad daylight, in the presence of her colleagues,
in the
Department of Home Affairs, where she had been in employment as a
marriage officer for thirteen years. She was placed into
the rear of
a police van in the full view of her colleagues and driven to the
police station, where she was detained for a period
of twenty five
(25) hours.
[45]
It is not possible to determine a common method of arriving at
appropriate and similar awards of damages for similar cases.
No two
cases are really identical. Guidelines are mentioned in,
inter
alia,
Neethling's
Law
of Personality,
2
nd
ed, para 2.4. I have taken those into account. Most of the cases I
have been referred to were finalised more than a decade ago,
at a
time when the economy of the country was much firmer and the value of
the rand was much stronger than it currently is. It
follows that the
awards should now be substantially higher, somewhere in the vicinity
of the awards in
Olivier
and
Killan.
It
is true that the delay in the finalisation of this judgment, for no
fault of the ', will prejudice them, in the sense that they
would
probably have had to pay somewhat less than now. On the other hand,
it is not the appellant's fault that the judgment was
delayed and he
should be protected from the vagrancies of the economy of the country
or the world. Absent his arrest, the defendants
would not be facing
such fluctuations.
[46]
I am of the view that, on the facts of the appeal before us, a
similar award is justified. The appellant is an educated person.
It
is not stated what his level of education is, except that he worked
for a firm of attorneys - his attorney, Andre Grobler's
firm of
attorneys. He, in all probability, has some high school education. He
had been in such employment for ten (10) years as
at the time of his
arrest. He normally worked from about 16:30 to 17:00 and was arrested
at about 18:30. He was in police custody
until his release at court
the next morning. It is common cause that he was refused permission
to telephone his employer, after
his arrest, and that he told
constable Maluleka that he was supposed to go on duty the next
morning. This demonstrates that he
is a responsible person, who cares
about his job and source income. He was locked and detained in a
"holding cell", at
the Sinoville Police station until the
next morning. Conditions in police cells are notorious. Constable
Maluleka has no personal
knowledge of what happened after the
appellant's incarceration. It is common cause, however, that he was
taken to court, where
the case against him was withdrawn.
[47]
No details are given of the court proceedings, except that he was
released at about 10:00. Counsel for the respondent could
not say,
before us, why the case was withdrawn. The appellant was, therefore,
in custody for a minimum of fifteen (15) hours and
thirty (30)
minutes. Most of that time was spent inside the holding cell. The
appellant had had no opportunity to inform his employer
and next of
kin about his predicament and what would happen to him the next day.
[49]
Mr Kriel submitted, in details I need no repeat, that the appellant's
circumstances are less deserving of an award of damages
in the region
of R50 000,00 than was the case in
Olivier
and
Killan.
I
disagree and am of the view that R50 000,00 is an appropriate award
in the appellant's case. In the circumstances I make the following
order:
The
appellants appeal against the Magistrate's order, dismissing his
claim, succeeds;
The
respondent's counter-appeal against the Magistrate's finding, that he
failed to discharge the
onus
bore,
is dismissed;
The
appellant is awarded damages in the amount of R50, 000, 00, to be
paid by the respondent;
The
Magistrate's order that each party was to pay its own costs is set
aside;
The
respondent is ordered to pay
(i)
costs of the action for proceedings in the Magistrate's court; and
(ii) costs of this appeal.
J.N.M
POSWA
JUDGE
OF THE HIGH COURT
I
agree
T.J
RAULINGA
JUDGE
OF THE HIGH COURT