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[2011] ZAGPPHC 112
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Brown v Minister of Safety and Security (26864/09) [2011] ZAGPPHC 112 (10 June 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case
No.: 26864/09
DATE:
10/06/2011
In
the matter between:
EDWARD
McCAY
BROWN
.............................................................................................
Plaintiff
and
THE
MINISTER OF SAFETY AND
SECURITY
...........................................................
Defendant
JUDGMENT
MNGQIBISA-THUSI
J
[1]
The plaintiff has instituted a claim against the defendant arising
from his alleged unlawful arrest and detention by members
of the
South African Police Force (SAPF) allegedly acting within the course
and scope of their employment. The plaintiff is also
asking for
punitive costs.
[2]
In his particulars of claim the plaintiff is claiming damages in an
amount of Rl 000 000,00 for the following damage allegedly
suffered
by him: deprivation of liberty; contumelia; emotional stress;
unlawful detention, and costs for defending the criminal
charges. The
total amount of damages (Rl 000 000.00) was not, however, broken down
in accordance with the above listed heads of
damages.
[3]
The defendant pleaded that the plaintiff was lawfully arrested in
terms of section 40 of the Criminal Procedure Act 51 of 1977
(the
Act). The defendant does not dispute the arrest and detention of the
plaintiff. At the start of the trial, the defendant's
counsel moved
for an amendment of the defendant's plea, which amendment was not
opposed by the plaintiff. The amendment was granted
and the amended
plea reads as follows:
"Lawfully
arrested the plaintiff in terms of section 40 of Act 41 of 1977 as a
suspect on charges of attempted murder and/or
assault where a
dangerous wound was inflicted."
[4]
Section 40
(1) of the
Criminal Procedure Act 51 of 1977
reads as
follows:
"(1)
A peace officer may without a warrant arrest any person -
(a)
...
(b)
Whom he reasonably suspects of having committed an offence referred
to in Schedule 1 of the Act."
[5]
In Minister of Safety and Security v Sekhoto
2011 (1) SACR 315
(SCA)
it was held at 320h para [6] that in order for section 40(1) (b)
defense to succeed, the jurisdictional facts must be present:
5.1
the arrestor must be a peace officer;
5.2
the arrestor must entertain a suspicion;
5.3
the suspicion must be that the suspect (arrestee) committed an
offence referred to in schedule 1; and
5.4
the suspicion must rest on reasonable grounds.
See
also Duncan v Minister of Law and Order
1986 (2) SA 805
(A).
[6]
Wrongful arrest consists in the wrongful deprivation of a person of
his liberty. Liability for wrongful arrest is strict, neither
fault
nor awareness of the wrongfulness of the arrestor's conduct being
required. Relyant Trading (Pty) Limited v Shongwe and another
2007
(1) AN SA 375 (SCA) at para.4; Smit v Meyerton Outfitters
1971 (1) SA
137
(T) at 139D. Once there is an alleged unlawful arrest, the
defendant bears the burden of proving that the arrest was lawful or
justified. Minister of Law and Order v Hurley
1986 (3) SA 568(A)
at
587 - 589. Furthermore, once it is proven that the arrest is
unlawful, the consequent detention of the plaintiff is also wrongful.
[7]
It is common cause that at around 16h30 on 24 December 2008 the
police were called to the Steak and Ale Restaurant in Botha
Avenue,
Lyttleton ("the restaurant") after a complaint was received
about an incident which had occurred. The police,
together with the
plaintiff, the victim and a car-guard had driven to the Lyttleton
Police Station where the plaintiff was subsequently
arrested and held
in custody. The plaintiff was released around 08h20 on 26 December
2008 after the local control prosecutor issued
a nolle prosequi on
charges of attempted murder, alternatively, assault with intention to
commit grievous bodily harm after the
victim of the alleged assault
could not be located.
[8]
Inspector Karabo Mafisa ("Mafisa") was the first to testify
on behalf of the defendant and his testimony is as follows.
[9]
On the day in question he had received a report on his radio about a
stabbing at the restaurant. He had proceeded to the restaurant
together with a crew member, Constable Cheliwe who has since passed
away. On arrival at the scene he found a man leaning against
a bakkie
and bleeding from his chest and one of his arms. He could not recall
which arm it was. A car-guard approached him and
informed him that
the injured man was stabbed by a white man who accused him of
stealing his car keys. Shortly thereafter the plaintiff
came out of
the restaurant, approached Inspector Mafisa and informed him that he
had stabbed the victim with a knife for stealing
his car keys. The
plaintiff thereafter took out the knife from his pocket and gave it
to him. This explanation surprised him as
he could see the car keys
dangling from the door of the plaintiff's car. Since there was a
restless crowd outside the restaurant
on the pavement, Inspector
Mafisa decided to move the plaintiff, the victim and the car guard to
a safer place at the Lyttleton
Police Station.
[10]
On arrival at the police station, Inspector Mafisa took the plaintiff
to sit on a bench behind the counter in the Customer
Service Centre
(UCSC"). He left the victim and the car-guard in the front of
the counter in the CSC. Inspector Mafisa again
spoke to the car guard
4
who repeated what he told him earlier at the crime scene. According
to Inspector Mafisa both the plaintiff and the defendant appeared
to
be under the influence of alcohol.
[11]
After talking to the car guard Inspector Mafisa spoke to the
plaintiff inquiring as to what might have happened. The plaintiff
had
confirmed what he told him at the crime scene, that he had stabbed
the victim with a knife for stealing his car keys. He then
decided to
arrest the plaintiff. The plaintiff was detained at around 18h05 on
suspicion of inflicting a serious injury. Inspector
Mafisa further
testified that he had not taken any warning statement from the
plaintiff as he was not a detective. Further that
after detaining the
plaintiff he had nothing further to do with him.
[12]
Under cross examination Inspector Mafisa substantially confirmed his
evidence in chief. He testified that initially at the
crime scene he
did not interview the victim as he appeared to be in pain. Later
after speaking to the plaintiff, he went back to
where he had left
the victim and the car guard at the front of the CSC. However, he did
not find them and was informed that a certain
Captain Falke, the
station commander had allegedly chased them away. He further
testified that he also wanted to get medical attention
for the
victim. On being asked further as to why he did not make an entry in
the occurrence book about the fact that Captain Falke
had chased away
the two witnesses. Inspector Mafisa explained that he had expected
Captain Falke to make the entry as he was the
senior officer.
[13]
The plaintiff's version put to the Inspector Mafisa is as follows.
Two African males tried to rob the plaintiff of his car.
During the
ensuing struggle the plaintiff managed to take out his pocket knife
and stabbed one of his assailants. The other one
ran away. In short
the version of the plaintiff is that in stabbing the victim, he had
acted in self defense. When Inspector Mafisa
arrived with several
other police officers he was arrested and taken to the Lyttleton
police station where he was locked-up in
a holding cell.
[14]
On re-examination Inspector Mafisa clarified the fact that when he
made the entry in his occurrence book and when he made his
statement,
he was unaware that the two witnesses (i.e the victim and the car
guard) were no longer where he had left them.
[15]
The next witness to testify on behalf of the defendant was Constable
Letsietsa who testified that, on the morning after the
arrest and
detention of the plaintiff (i.e on 25 December 2008) and after going
through the normal formalities before a warning
statement is taken
from an accused, the plaintiff had exercised his constitutional right
to remain silent.
[16]
At the end of Constable Letsietsa's testimony, the defense closed its
case.
[17]
The plaintiff testified as follows. After visiting the restaurant
with some friends, he had decided to leave. On reaching his
car which
was parked outside a chemist, he opened the window on the driver's
side when he noticed a black man coming from the front.
The man tried
to take his keys through the open window. He managed to hit the man
with his open hand through the car's open window.
Then someone held
him by his shoulders trying to drag him to the ground. He rose, stood
up, managed to take out his pocket knife
which was in a holster on
his belt and screamed for help that the police be called. He then
stabbed the man on the left side of
his chest. A pharmacist, a Mr van
Wyk, came to his rescue. They managed to overpower the assailant and
Mr Van Wyk pinned him to
the boundary fence. Thereafter he had gone
back into the restaurant where he washed his hands and the knife. Van
Wyk called the
police. Four police officials in two cars arrived at
the scene. He testified that he told Inspector Mafisa that he was
defending
himself and protecting his property. Inspector Mafisa had
then requested him to the police station which he did driving his own
vehicle. At the police station he was made to sit on a bench at the
back of the counter, between the charge office and the holding
cells.
Inspector Mafisa informed him that he was arresting him for
inflicting a dangerous wound. He was then processed and he was
also
read his constitutional rights which were explained to him in
Afrikaans as he claimed not to be well conversant with English.
The
plaintiff also claimed that during the scuffle with the persons who
attempted to rob him of his vehicle he was injured. He
was examined
by a doctor on 27 December 2008 after his release on bail on 26
December 2008. However, the J88 indicated that there
were no injuries
observed. On 26 December 2008 he was released on bail. On
subsequently appearing in court, the charges were withdrawn
by the
office of the Director of Public Prosecutions.
[18]
Although the plaintiff denied giving Inspector Mafisa the knife he
used to stab the victim, this was not put to Inspector Mafisa
during
cross examination. Further the plaintiff claimed that he had found
his keys in his car on the passenger sit.
[19]
Under cross examination the plaintiff conceded that he was not, on
arrival at the police station, put in a holding cell as
asserted by
his counsel, but was left to sit on a bench behind the counter in the
CSC. He also confirmed that he had refused to
give a warning
statement before he was locked up. An attempt to take a warning
statement was made the following morning by a student
constable and
plaintiff had refused to give one. He only gave a statement to
Inspector Debbie Van Zyl on 26 December 2008.
[20]
Still under cross examination the plaintiff had difficulties
explaining the discrepancies between his testimony in court and
the
statement taken by Inspector Van Zyl. In his evidence the plaintiff
had indicated that he was attacked by two assailants. However
in his
statement he only made mention of one person who allegedly attacked
him. Further, although the plaintiff admitted to not
being locked up
in a holding cell on arriving at the police station, in his statement
he had indicated that as soon as he arrived
at the police station he
was put in a cell, hence the assertion by his counsel that he was
arrested at the crime scene before any
investigation being made.
[21]
The plaintiff called Inspector Van Zyl to testify. Inspector van Zyl
confirmed that the content of the plaintiff's statement
was what he
had told her. She conceded that if she had the same information which
Inspector Mafisa had when he decided to arrest
and detain the
plaintiff, she would also have acted in exactly the same manner.
[22]
The plaintiff also called Captain Falke. His evidence did not add
much except to confirm that he had explained to the plaintiff
his
constitutional rights. He also denied chasing away the car-guard and
the victim from the police station on the day in question.
[23]
In argument counsel for the plaintiff argued that the arrest was
unlawful in that Inspector Mafisa was aware at the time of
the arrest
that the plaintiff was trying to defend himself from the two men who
were trying to rob him of his car and to protect
his property. He
argued that Inspector Mafisa had no reason to arrest the plaintiff at
the scene as he had not investigated the
matter. It was suggested by
the plaintiff's counsel that Inspector Mafisa should have interviewed
some of the members of the crowd
who were outside the restaurant. He
argued that this failure to interview members of the crowd who had
gathered outside the restaurant
had rendered the arrest of the
plaintiff unlawfully. Counsel contended that even if the plaintiff
had committed an offence, Inspector
Mafisa had not exercised his
discretion reasonably in that he did not consider other alternative
methods of bringing the plaintiff
before the court. Counsel further
argued that Inspector Mafisa should have released the plaintiff when
his wife and daughter came
to the station and asked for his release
particularly as the plaintiff was not a flight risk.
[24]
Counsel for the defendant argued that the offence for which the
plaintiff was arrested for was a schedule 1 offence. Therefore,
Inspector Mafisa was within his rights to arrest the plaintiff.
Counsel further argued that the arrest of the plaintiff was lawful
in
that Inspector Mafisa, on the basis of the information from the car
guard and from the plaintiff himself at the scene of the
crime and at
the police station, he had a reasonable suspicion to suspect that a
schedule 1 offence had been committed. That therefore
the arrest was
lawful in terms of section 40(l)(b) of the Act. Counsel submitted
that Inspector Mafisa had no powers to release
the plaintiff once
arrested either on bail or on his own cognizance as bail in the case
of a schedule 1 offence could only be granted
by a court. It was
further submitted that Inspector Mafisa had exercised his discretion
reasonably in deciding to detain that plaintiff.
[25]
I found Inspector Mafisa t be a credible and honest witness. His
testimony as to the events which occurred on the relevant
day was
satisfactory despite minor inconsistencies here and there
particularly with regard to whether medical assistance was sought
for
the victim. Inspector Van Zyl also displayed the same candidness with
the court. With regard to the plaintiff I would not say
that he was
not honest an honest witness. However under cross examination he was
evasive in answering the questions put to him
by counsel for the
defendant.
[26]
Taking into account all the evidence before me I am satisfied that
the evidence of Inspector Mafisa is the more probable as
regards the
events of the day in question.
[27]
It is not in dispute that the plaintiff had stabbed the victim with a
pocket knife, an offence which is a schedule 1 offence.
Secondly it
is not in dispute that the plaintiff was arrested at around 17h00 as
testified to by Inspector Mafisa, the plaintiff
and as reflected in
the occurrence book. Further it is common cause that the plaintiff
was brought before court within 48 hours
of his arrest.
[28]
Once Inspector Mafisa was satisfied that a reasonable suspicion
existed that the plaintiff had committed s schedule 1 offence,
he had
a discretion either to arrest the plaintiff of release him. Taking
into account the facts at hand: that there was a victim
who, by the
plaintiff's own admission was stabbed, Inspector mafias having
observed the victim bleeding profusely from his wounds,
and the
victim having disappeared without reason and inspector Mafisa not
knowing if the victim would live, he made a decision
to arrest the
plaintiff. Possibly further investigation could have been necessary.
I am not convinced that Inspector Mafisa had
not applied his mind to
the facts when he decided to arrest and detain the plaintiff. Even
Inspector van Zyl had conceded that
if she was in the position of
Inspector Mafisa and having the information he had, she would a\so
had arrested and detained the
plaintiff. In Sekhoto (supra) at para
[25], the Supreme Court of Appeal held that:
"It
could hardly be suggested that an arrest under the circumstances set
out in s 40(l)(b) could amount to a deprivation of
freedom which is
arbitrary or without just cause in conflict with the Bill of Rights.
A lawful arrest cannot be arbitrary. And
an unlawful arrest \n\11 not
necessarily give rise to an arbitrary detention. The deprivation
must, according to Canadian jurisprudence,
at least be capricious,
despotic or unjustified."
[29]
I am satisfied that when Inspector Mafisa decided to arrest and
detain the plaintiff he did not act out of malice or on the
basis of
an unjustified reason. He acted on the basis of the facts before him
and exercised his discretion reasonably. The argument
by the
plaintiffs counsel that it was not necessary for Inspector Mafisa to
detain the plaintiff as he knew where he lived and
could easily find
him is misplaced as the Supreme Court of appeal in Sekhoto has held
that there is no fifth jurisdictional fact
in terms of section
40(l)(b) as alluded to in Louw and another v Minister of Safety and
Security and others
2006 (2) SACR 178
(T) where the court held that:
"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
crime has been
committed, this in itself does not justify an arrest forthwith."
[30]
When Inspector Mafisa decided to arrest the plaintiff he had no
powers to release the plaintiff since the powers to release
or detain
the plaintiff rested with the courts. On that basis I am of the view
that the detention of the plaintiff was also not
unlawful.
[31]
Accordingly the following order is made:
'The
plaintiff's claim is dismissed with costs.'
NP
MNGQIBISA-THUSI J
Judge
of the North Gauteng High Court