About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 145
|
|
Swanepoel v Minister of Police and Another (2101/2020) [2023] ZAFSHC 145 (20 April 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no
.
2101/2020
In
the matter between:
KARIN
SWANEPOEL
and
Plaintiff
MINISTER
OF POLICE
First
defendant
ANDREW
MKETHI MHLAFU
Second
defendant
CORAM: VAN
RHYN
J
HEARD
ON: 8,
9 and 11 NOVEMBER 2022, 5 and 6
DECEMBER 2022 AND 20 FEBRUARY 2023
DELIVERED: 20
APRIL 2023
Introduction.
[1]
The plaintiff, Karin Swanepoel, an adult female born on the 5 October
1984, instituted
action against the first defendant in his capacity
as representative and head of the South African Police Service
(“SAPS”)
claiming damages in the amount of R500 000.00
suffered due to the alleged wrongful, illegal and unlawful arrest
executed by
the second defendant, Andrew Mkethi Mhlafu.
[2]
The plaintiff, a resident of Odendaalsrus, Free State Province, was
arrested on 7
March 2019. The arrest was effected without a warrant
by the arresting officer, Warrant Officer Mhlafu (“WO Mhlafu”)
on a charge of Crimen Injuria. WO Mhlafu effected the arrest while
acting within the course and scope of his employment with the
first
defendant.
The circumstances leading to the
arrest are however in dispute.
[3]
Neither the plaintiff nor the defendants referred to any specific
section of the Criminal
Procedure Act
[1]
(the “CPA”) in the pleadings regarding the
lawfulness of the arrest of the plaintiff. The defendants denied in
their Plea that the arrest was wrongful, illegal and unlawful and
pleaded that the plaintiff committed a crime in the presence
of WO
Mhlafu. The merits and quantum of the plaintiff’s claim
were separated and the trial proceeded on the merits
only.
The
Defendant bore the duty to begin and the onus of proof to show, on a
balance of probabilities, that the arrest of the Plaintiff
was lawful
in terms of subsection 40(1) of the CPA.
The Defendant’s
Case
[4]
The defendants presented the testimony of four witnesses. The first
witness was that
of WO Mhlafu, the arresting officer. WO Mhlafu is
presently still stationed at Odendaalsrus Police Station and has been
a member
of SAPS for the past 29 years. During March 2019 he was the
Charge Office Commander.
[5]
WO Mhlafu testified that on 7 March 2019 between 07h00 and 08h00, the
plaintiff and
her husband (“Mr Swanepoel”) came to the
charge office to lay a complaint regarding a taxi that nearly “ran
them
over”. WO Mhlafu asked them what the complaint was about
and after they explained that they did not have the registration
number of the taxi but that they would be able to identify the taxi,
he requested them to be seated in the charge office. He offered
to
call a police vehicle to take them to the taxi rank to go and search
for the particular taxi.
[6]
WO Mhlafu testified that he contacted a colleague who was in
possession of the only
available police vehicle, to assist. The
colleague, Constable Makatu reported that as soon as the complaints
he was busy attending
to were dealt with, he would return to the
police station to attend to the plaintiff’s complaint. After
about 20 minutes
the plaintiff became aggressive and complained that
she had been waiting for a considerable period of time and if she was
“black”,
she would not have been requested to wait. After
having explained to the plaintiff that the police are attending to
complaints
which had been lodged before her matter, she insulted the
witness by saying that she: “… is going to show me my
ass”.
[7]
WO Mhalfu reprimanded her not to use vulgar language and not to
insult him. While
reprimanding her, the plaintiff exited the charge
office and entered the corridor into the court yard of the police
station. She
then said to WO Mhlafu that he is a “swart kaffir
polisieman”. After she had uttered these word, he stood up from
the
desk where he had been sitting and followed her, grabbed her and
said that he is arresting her for calling him a “kaffir”.
Mr Swanepoel then tried to intervene and attempted to separate them.
Constable Mafabato came to assist with the arrest of the plaintiff.
[8]
The plaintiff was escorted back to the charge office and requested to
sit while WO
Mhlafu opened a docket on a charge of
crimen injuria.
The plaintiff, in the meantime explained that she has cancer to which
WO Mhalfu responded that the plaintiff does not have the
right to
insult him. The witness also learned from Constable Mafabatho that
the plaintiff’s grandmother had arrived at the
police station
and will provide the plaintiff with the medication prescribed for her
medical condition.
[9]
During cross examination, by Mr P C Ploos van Amstel, acting on
behalf of the plaintiff,
it was put to WO Mhlafu that Mr Swanepoel,
the plaintiff’s husband, came to the charge office on his own
and was only joined
by the plaintiff at a later stage. WO Mhlafu
denied this version. He confirmed that he only enquired about the
registration number
of the taxi, however, was informed that the
registration number is not available due to the fact that the
plaintiff and Mr Swanepoel,
could not recall the registration number.
He informed the plaintiff and Mr Swanepoel that no crime had been
committed.
[10]
WO Mhlafu conceded that he did not enquire about the possible
identification of the taxi or took any
statements regarding the
incident. When confronted by Mr Ploos van Amstel why he failed to
open a police docket and took a statement
from Mr Swanepoel where
after the case would be investigated further by the detectives, he
explained that Mr Swanepoel and the
plaintiff did not wish to lay a
complaint and have a case opened. They merely wanted the driver of
the taxi to be reprimanded.
They attended the police station to
complain about the taxi driver’s behaviour and not to lay a
complaint.
[11]
WO Mhlafu testified that he would usually listen to the version of a
person who came to lay a complaint
at the police station and would
then ascertain if all the elements of the crime are present where
after he would decide”
where the case leads too”, in
other words whether a police docket should be opened or not.
[12]
WO Mhlafu explained that he felt humiliated by the racial insult
uttered by the plaintiff and that
he was angered by her behaviour.
The witness further stated that he felt that the plaintiff had to be
punished for calling him
a “kaffir”. According to WO
Mhlafu
crimen injuria
is a Schedule 1 offence. Furthermore,
the offence was committed in his presence. The arrest was executed
between 07h00 and 08h00
on 7 March 2019 at the police station at
Odendaalsrus.
[13]
According to the testimony of Constable Mantsho Jeanette Mafabatho
(“Constable Mafabatho”)
she was in the charge office at
the Odendaalsrus police station on 7 March 2019 when Mr Swanepoel and
the plaintiff entered to
lay charge and open a docket regarding an
incident involving reckless driving. She testified that the plaintiff
and Mr Swanepoel
did not have the registration number of the taxi.
She was attending to other complaints at the time when the plaintiff
and Mr Swanepoel
was discussing the matter with WO Mhlafu. According
to her, a docket could not be opened due to the fact that the
registration
number of the vehicle was not available. Constable
Mafabatho corroborated WO Mhlafu’s evidence that the plaintiff
called
him a “swart kaffir polisieman” where after she
was arrested on a charge of
crimen injuria
. She was
under the impression that
crimen injuria
was a Schedule 1
offence and that the plaintiff could be arrested for the said
offence. Subsequent to the plaintiff being seated
in the charge
office, the plaintiff allegedly urinated which caused her clothes and
the carpet in the charge office to become wet.
[14]
Constable Makatu testified that, on the day of the incident, he was
attending to a complaint in the
township while utilising the only
available police vehicle. He explained that other police vehicles
were available but they were
“not working” on that day.
He testified that he did not receive a call from WO Mhlafu to assist
the plaintiff and Mr
Swanepoel to look for a taxi. He only
received a call to take the plaintiff to Allanridge to be
incarcerated on a charge
of
crimen injuria
. Due to renovations
being made at the police station at Odendaalsrus, no holding cells
were available and detainees had to be conveyed
to the police station
at Allanridge. Constable Makatu explained that he made an
inscription next to the charge of
crimen injuria
indicating
that the charge was in connection with a domestic violence matter. He
conceded that he clearly made a mistake as this
case is not a
domestic violence matter. He cannot explain why he wrote “DV”
for domestic violence next to the charge.
The Plaintiff’s
Case
[15]
Mr Swanepoel testified that he, the plaintiff, as well as a male
friend, Tjaart van der Walt (“Mr
Van der Walt”) were on
their way to the hospital on the particular day to collect the
plaintiff’s medication. The plaintiff
had been diagnosed with
cervical cancer and received morphine at the hospital to alleviate
the pain she suffered from. On their
way to the hospital, whilst
pushing their daughter’s bicycle, a taxi almost ran them over.
Mr Swanepoel then left the
bicycle with the plaintiff and Mr Van der
Walt and went ahead to the police station which is located in the
same street.
[16]
The plaintiff and Mr van der Walt took the bicycle and followed Mr
Swanepoel to the police station.
Mr Swanepoel testified that when he
arrived at the police station he explained what had occurred
regarding the incident with the
taxi to a female police official. WO
Mhlafu then asked what happened and Mr Swanepoel, being frustrated to
again explain his version
of the events, uttered the following: “Must
I again now explain everything?” Mr Swanepoel repeated the
incident regarding
the taxi to WO Mhlafu who then said that there was
no case to be opened. Mr Swanepoel then said the following: “…must
somebody now first be killed before one can get police assistance”.
[17]
Mr Swanepoel testified that he did not get any assistance from the
members of the SAPD and decided
to leave. Upon leaving, the plaintiff
and Mr van der Walt arrived at the police station. He then told the
plaintiff that “…
they are busy wasting my time”.
According to Mr Swanepoel, WO Mhlafu followed them while they were on
their way to exit the
police station and then grabbed the plaintiff
by her arm. Mr Swanepoel testified that he assumed that, due to the
plaintiff’s
medical condition, she was passing water and blood
while still in the passage. Constable Mafabatho came to assist with
the arrest
of the plaintiff, which according to him, was rather
forceful.
[18]
The plaintiff was made to wait in the charge office while her clothes
were wet. A person from across
the road brought a towel with which
the plaintiff could cover the lower part of her body. Mr Swanepoel
denied the allegation that
the plaintiff uttered the racial slur as
alleged by WO Mhlafu and Constable Mafabatho. He furthermore denied
that the plaintiff
said that they, namely, W O Mhlafu and Constable
Mafabatho “will see their’ assess”.
[19]
The plaintiff corroborated Mr Swanepoel’s evidence pertaining
to the incident with the taxi and
the events that occurred in the
charge office. She denied uttering the alleged racial slur or
saying anything derogatory
or insulting while at the police station.
She testified that her constitutional rights were not explained to
her. She received
a document to sign, apparently the SAP14A, the
Notice of Rights in terms of the Constitution which contain a summary
of a detainee’s
right in terms of section 35 of the
Constitution.
[20]
According to the plaintiff, the conditions under which she was
detained were appalling. She was
not provided with dry clothes
or any medication and was kept at the holding cells at Allanridge
until her release at around 17h00,
the same day, when WO Brits handed
her a SAPS 496 notice and took her home to Odendaalsrus. The
plaintiff denied the version presented
by the defendant that regular
cell inspections were carried out as evidenced by the Occurrence Book
kept at the holding cells at
Allanridge police station. A copy
of the relevant notes pertaining to the cell visits performed and
complaints received,
as per the Occurrence Book, was submitted as an
exhibit during the trial.
[21]
The plaintiff denied entering the charge office with Mr Swanepoel and
explained that she only arrived
at the police station after Mr
Swanepoel had already entered the charge office. She corroborated the
evidence of her husband, regarding
her and Mr van der Walt’s
arrival at the police station and denied uttering the alleged racial
slur. The version presented
by Mr Swanepoel were mostly reiterated by
the plaintiff except for the part where she was not present. There
were no material contradictions
between the evidence adduced by the
plaintiff and Mr Swanepoel.
[22]
Plaintiff presented the testimony of Mr van der Walt, a 24-year-old
male residing at Odenadaalsrus.
On the day of the incident he
accompanied the plaintiff and Mr Swanepoel when they walked their
daughter to the school. Thereafter
they were supposed to collect a
motor vehicle from Mr Swanepoel’s brother in order to travel to
the hospital. On their way
to collect the motor vehicle, a taxi
skipped a stop street and almost ran them over. The taxi driver
pulled over and Mr Swanepoel
and the taxi driver had words. Mr
Swanepoel, angered due to the incident with the taxi driver, dropped
the bicycle he was pushing
and walked off in the direction of the
police station to report the incident.
[23]
Mr Van der Walt took a photograph of the taxi’s registration
number with his cellular phone.
The plaintiff struggled to push the
bicycle left behind by her husband. Mr Van der Walt took the bicycle
from her and they followed
Mr Swanepoel to the police station. When
they arrived at the police station Mr Van der Walt entered the police
station and went
to the charge office where he met up with Mr
Swanepoel. The plaintiff waited outside too keep an eye on the
bicycle. When the witness
entered the charge office he heard Mr
Swanepoel complaining that the police is wasting his time. Only then
did the plaintiff enter
the charge office. Mr Van der Walt denied
that the plaintiff uttered any derogatory words or insulted WO
Mhlafu. During cross examination
by Ms De Kock, counsel on behalf of
the defendant, Mr Van der Walt could not provide any reason why the
plaintiff was arrested.
[24]
The last witness for the plaintiff was Warrant Officer Johannes
Hendrik Britz. (“WO Britz”)
He is a member of the SAPS
and stationed at the police station at
Odendaalsrus. He has 33
years’ experience as a member of the SAPS. On 7 March 2019,
while at the police station at Allanridge,
he handed a SAP 496
document to the plaintiff to appear in the Magistrates Court at
Odendaalsrus on the following day, the 8
th
of March 2019.
The charge against the plaintiff was one of
crimen injuria
.
[25]
WO Britz testified that he has never experienced a person being
detained on a charge of
crimen injuria
. In his
experience, the risk of a civil claim for detention on a charge of
crimen injuria
looms greatly and, even if a person is arrested
on a charge of
crimen injuria
, such an offender should be
released immediately. In the event of uncertainty, a police officer
should consult with his or her
commander whether to arrest and detain
a suspect on certain charges. A police officer, in any event has a
discretion whether to
arrest and detain a suspect. WO Britz testified
that the plaintiff was released from the cells at the police station
at Allanridge
on the day of her arrest at 15h55. At approximately
16h00 he left with her from Allanridge to Odendaalsrus which is
approximately
a 35 minute drive. He furthermore testified that a
charge of
crimen injuria
is a minor crime and a person should
not be detained on a charge of
crimen injuria
.
Applicable
legal principles.
[26]
In actions for 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
[2]
.
[27]
The first defendant and the first
defendants’
employees have a constitutional obligation not to perform any act
which infringes upon the fundamental rights
protecting the citizens
of South Africa and which are entrenched in the Constitution.
[3]
The most pertinent right in this case being section 12 which provides
as follows:
“
12.
Freedom and Security of the person
(1)
Everyone has the right to freedom and security of the person, which
includes the right-
(a)
not to be deprived of freedom arbitrarily or without just cause;
(b)
not to be detained without trial;
(c)
to be free from all forms of violence from either public
or private sources;
(d)
not to be tortured in any way; and
(e)
not to be treated or punished in a cruel, inhuman or degrading
way.“
[28]
In
Botha
v Minister of Safety and Security and others, January v Minister of
Safety and Security and Others
[4]
Tshiki
J (as she was then) held as follows:
“
It
is also trite law that in a case where the Minister of Safety and
Security (as defendant) is being sued for unlawful arrest and
detention and does not deny the arrest and detention, the onus to
justify the lawfulness of the detention rests on the defendant
and
the burden of proof shifts to the defendant on the basis of the
provisions of s 12(1) of the Constitution . . . These
provisions, therefore, place an obligation on police officials, who
are bestowed with duties to arrest and detain persons charged
with
and/or suspected of the commission of criminal offences, to
establish, before detaining the person, the justification and
lawfulness of such arrest and detention”.
And
further:
“
It
goes without saying that the police officer's duty to apply his or
her mind to the circumstances relating to a person's detention
includes applying his or her mind to the question whether the
detention is necessary at all. This information, which must have
been
established by the police officer, will enable the public prosecutor
and eventually the magistrate to make an informed decision
whether or
not there is any legal justification for the further detention of the
person.”
[5]
[29]
Subsection 40(1) of the Criminal Procedure Act reads as follows:-
“
A
peace officer
may
without warrant arrest any person-
(a)
who commits or attempts to
commit
any offence in his presence
;
(b)
whom he reasonably suspects of having
committed
an offence referred to in
Schedule 1
, other than the offence of
escaping from lawful custody;
(c)
…
.”
(
underlining
added)
[30]
Section 40(1) provides for several different
instances where a peace officer may effect an arrest without
a
warrant of arrest.
Section 40(1)(a) empowers a peace officer
to arrest, without a warrant, any person who commits an offence in
their presence. The
jurisdictional facts necessary for an arrest
under section 40(1)(a) are the following:
(i)
the arrestor must be a peace officer;
(ii)
an offence must have been committed or there must have been an
attempt to commit an offence; and
(iii)
the offence or attempted offence must be committed in
his or her presence.
[31]
The methods of securing the attendance of an accused in court for the
purposes of trial are arrest,
summons, written notice and indictment
in accordance with the relevant provisions of the CPA. It is
commendable that an arrest
in terms of section 40(1)(a) should
be confined to serious cases but where a peace officer does effect a
lawful arrest in
terms of section 40(1)(a) for what may be
considered to be a less serious offence, the arrest or subsequent
detention does
not become unlawful merely because a summons, or
notice to appear in court, would have been equally effective in
ensuring his or
her presence at court.
[32]
In the matter of
Olivier
v Minister of Safety and Security and Another,
[6]
the
court held that:
“
When
deciding if an arrestor’s decision to arrest was reasonable,
each case must be decided on its own facts.”
[7]
Discussion
.
[33]
Mr Ploos van Amstel argued that WO Mhlafu acted as judge, jury and
executioner and proceeded
with the arrest of the plaintiff while he
was agitated, angry and on his own version, felt disgraced and
belittled, due to the
alleged conduct of the plaintiff. What WO
Mhlafu should have done under the circumstances was to have a case
opened by another
police officer for further investigation and to
take the necessary steps to bring the plaintiff to justice, which
steps did not
include the arrest and subsequent detention of the
plaintiff.
[34]
On behalf of the plaintiff it is contended that two scenarios exist:
the first being that the
plaintiff did not utter any racial related
derogatory remarks as alleged and that WO Mhlafu became agitated with
Mr Swanpoel’s
untoward attitude. In a response he arrested the
plaintiff on the grounds that she is an “easy target”.
Due to the
fact that the plaintiff and Mr Swanepoel testified that
they were startled by the behaviour of WO Mhlafu when he grabbed the
plaintiff’s
arm while they were exiting the police station, it
is apparent that neither of them expected the arrest, which, so the
argument
goes, is indicative that the plaintiff did not utter such
profanities.
[35]
The second scenario is that the plaintiff did indeed utter the words
as alleged by WO Mhlafu
and Constable Mafabatho which caused the
arrest and detention of the plaintiff. Mr Swanepoel, on his own
version, became agitated
and angry with the dismissive conduct of the
members of the SAPD at the Odendaalsrus Police Station and decided to
leave without
being assisted to open a case of reckless driving. Mr
Ploos van Amstel conceded that Mr Swanepoel obviously did not keep
his emotional
status in check and in all probability did not address
WO Mhlafu in a respectful and decent manner.
[36]
Ms De Kock conceded that
crimen injuria
is not a Schedule 1
offence as proclaimed by WO Mhlafu and Constable Mafabatho. WO Mhlafu
was the complainant who suffered the
alleged racial abuse. He was
party to all the facts and information regarding the crime of
crimen
injuria
allegedly committed by the plaintiff and he did not rely
on information provided to him by a complainant or another police
official.
The issue whether the arrestor, WO Mhlafu, entertained a
suspicion regarding the offence did not come into play at all.
[37]
It was submitted on behalf by Ms De Kock
that the defendants had discharged the onus of proving, on a balance
of probabilities,
that the arrest of the plaintiff was lawful in
terms of subsection 40(1)(a) of the CPA. More particularly, it was
submitted by
the defendant’s counsel that the arrest of the
plaintiff by WO Mhlafu, viewed objectively, was justified on the
basis that
he is a peace officer and a crime was committed in his
presence.
[38]
Ms De Kock further submitted that the court is faced with conflicting
versions regarding the question
whether an offence had been
committed. With reference to
Stellenbosch
Farmers Winery Group (Pty) Ltd v Martell et cie and Others
[8]
it
was contended that an evaluation must be made concerning the
credibility of the witnesses, their reliability and the probabilities
of their versions. On the basis that the plaintiff testified after
the testimony of her husband was adduced, she cannot escape
the
consequences of being present in court when her husband testified.
The possibility that her evidence was trimmed to accord
with the
testimony of Mr Swanepoel cannot be excluded. On behalf of the
defendants it was argued that several aspects regarding
the testimony
of the plaintiff were not put to any of the defendants’
witnesses.
Discussion
of the facts and legal principles
.
[39]
According to Mr Swanepoel he did not even have the opportunity to
indicate to WO Mhlafu that
he had a photograph of the taxi’s
number plate. Mr Swanepoel’s anger emanated from the total lack
of interest regarding
his complaint and that is why he said that the
police officials were wasting his time.
[40]
It is evident from the facts that the members of the SAPD at the
charge office did not open a
docket in respect of the complaint by Mr
Swanepoel. According to Constable Mafabatho, the incident with the
taxi was merely “attempted
reckless driving” and
therefore no crime had been committed. According to her, it is
required that the vehicle involved
must have actually collided with a
complainant and a report regarding injuries had to accompany such a
complaint.
[41]
WO Mhlafu testified that no crime had been committed by the taxi
driver even though he conceded
that he did not take down a statement
from Mr Swanepoel or question him regarding the alleged crime and the
particulars of the
taxi involved. Furthermore, WO Mhlafu’s
testimony that Mr Swanepoel and the plaintiff merely wanted to
complain about the
taxi driver’s behaviour, appears to be
wholly improbable and is to my mind a fabrication to explain his
failure to open a
docket and take a statement from the complainant.
[42]
Taking cognisance of the events that preceded the plaintiff and Mr
Swanepoel’s attendance
at the police station, they were
obviously both already agitated by the taxi driver’s conduct,
who on their version, uttered
profanities at Mr Swanepoel when he was
reprimanded by Mr Swanepoel for driving without any consideration of
pedestrians, being
himself and the plaintiff.
[43]
I furthermore take into consideration that the plaintiff was on her
way to the hospital to obtain
morphine to be used as pain medication,
due to her being diagnosed with cancer. Mr Swanepoel testified that
they were walking to
the hospital and did not have transport. He
furthermore testified that his wife had by then received a letter
from the hospital
referring her to Bloemfontein for chemotherapy and
radiation treatment. The fact that the plaintiff was diagnosed with
cervical
cancer was not placed in dispute. During her testimony the
plaintiff, even though the trial commenced more than 3 years after
the
event, appeared to be rather thin and frail.
[44]
At the police station further delay, agitation and frustration
followed. Mr Swanepoel testified
that he was angry and indicated that
he was not afforded any service by the members of the SAPD when he
attended the police station
to lay a complaint. It is apparent from
the evidence that WO Mhlafu did not seriously pay attention to the
complaint lodged by
Mr Swanepoel and decided that he is not even
going to take any particulars regarding the complaint.
[45]
According to WO Mhlafu he indicated to Mr Swanepoel and the plaintiff
to be seated. He called
for the only police vehicle to assist Mr
Swanepoel to go and look for the taxi. Why the complainant had to
investigate his own
complaint has not been explained. The version
presented by WO Mhlafu were denied. It seems improbable that WO
Mhlafu would request
Mr Swanepoel to wait for a police vehicle to
assist if, on his version, the taxi driver did not commit any
offence. I am of the
view that WO Mhlafu fabricated his version of
the events to explain the failure to attend to the complaint lodged
by Mr Swanepoel.
[46]
Constable Makatu testified that the only call he received on day of
the plaintiff’s arrest,
was to take the plaintiff to the police
station at Allanridge. His testimony has a negative effect on the
credibility of WO Mhlafu
and confirms the testimony of Mr Swanepoel
that he did not receive any assistance at the charge office. In an
attempt to bolster
her senior officer’s decision that no crime
had been committed by the taxi driver, Constable Mafabatho astonished
with her
conclusion that the taxi driver merely “attempted”
to drive recklessly and in any event no injuries were reported by
Mr
Swanepoel.
[47]
Furthermore, both WO Mhlafu and Constable Mafabatho testified that
all the elements necessary
for constituting the crime of reckless
driving were not present. Constable Mafabatho did not consult with Mr
Swanepoel regarding
the incident with the taxi and most probably
merely repeated what was said by WO Mhlafu in this regard. I am of
the view that,
on the probabilities, WO Mhlafu failed to pay any
attention to Mr Swanepoel’s complaint regarding the incident
involving
the taxi and his version that he assisted the plaintiff and
Mr Swanepoel “nicely” is highly improbable. In this
regard,
I accept the version presented by Mr Swanepoel that he
entered the charge office on his own to lay a complaint of reckless
driving
and that he was not assisted. I furthermore accept the
version that the plaintiff only entered the charge office a few
minutes
later, subsequent to Mr Swanepoel being informed that no
crime had been committed by the taxi driver.
[48]
However, taking cognisance of the events that happened when the taxi
driver nearly collided with
Mr Swanepoel and the plaintiff, the
alleged vulgar language uttered by the taxi driver and the manner in
which Mr Swanepoel and
the plaintiff were received when they wanted
to lay a complaint at the police station, I am of the view that, on a
balance of probabilities,
the plaintiff did utter the alleged racial
slur in accordance with the testimony of WO Mhlafu. Constable
Mafabatho testified that
the plaintiff was shouting and insulting her
as well as WO Mhlafu for not assisting them. The plaintiff’s
verbal insults
most probably followed after being informed that no
case will be opened by the police. I agree with Ms De Kock’s
contention
that something must have occurred which lead to the arrest
of the plaintiff.
[49]
The denial by the plaintiff, and the witnesses on behalf of the
plaintiff, that she did not say
anything derogatory after learning
from her husband that the police are wasting his time, are inherently
improbable. Something
must have angered WO Mhlafu to have stood up
from his desk and walk down the corridor to arrest the plaintiff.
There can be no
justification for insulting and defaming members of
the SAPD or any other person for that matter, and being frustrated or
angered
can never be regarded as a defence or an excuse to act in
such an appalling and unacceptable manner.
[50]
In
respect of Section 40(1)(a) police officers are given extraordinary
powers of arrest. This is of course, unless justified,
an
infringement of liberty and human dignity. In
Minister
of Safety and Security v Van Niekerk
[9]
the Court held that nuanced guidelines exist as to when to arrest
without a warrant and when not. This must be read
in the
light of
MR
v Minister of Safety and Security
[10]
and
Minister
of Safety and Security v Sekhoto and Another
[11]
.
[51]
Members
of the SAPS should exercise his or her powers in accordance with
section 13 of the South African Police Service Act
[12]
(the SAPS Act) which provides as follows:
“
13
Members
(1)
Subject to the Constitution and with due regard to the fundamental
rights of every person, a member
may exercise such powers and shall
perform such duties and functions as are by law conferred on or
assigned to a police official.
(2)
Where a member becomes aware that a prescribed offence has been
committed, he or she shall inform
his or her commanding officer
thereof as soon as possible.
(3)
(a)
A member who is obliged to perform an official duty,
shall, with due regard to his or her powers, duties and functions,
perform
such duty in a manner that is reasonable in the
circumstances.”
[52]
All members of SAPS must act in accordance with the requirements of
the Constitution and in doing
so must have regard to, particularly,
the fundamental rights of every person they are dealing with in the
course of their duties.
[13]
An
arrest is a drastic interference with the rights of an individual’s
freedom of movement and the right to dignity. In the
Van
Niekerk
matter, Sachs J again referred to the drastic nature of an arrest and
the dilemma of how to control the discretion of police officers
under
section 40 of the CPA.
[53]
The Standing Order (G) 341 dealing with arrest and the
treatment of an arrested person
[14]
confirms the drastic nature of an arrest and should be implemented as
a last resort to ensure the presence of a person in court.
The
standing order provides,
inter
alia
,
the following:
“
Securing
the attendance of an accused at the trial by other means than arrest
(1)
There are various methods by which an
accused’s attendance at trial may be secured. Although
arrest is one of these
methods, it constitutes one of the most
drastic infringements of the rights of an individual and a member
should therefore regard
it as a last resort.
(2)
It is impossible to lay down hard and fast rules regarding the manner
in which the attendance of an accused
at a trial should be secured.
Each case must be dealt with according to its own merits. A
member must always exercise
his or her discretion in a proper manner
when deciding whether a suspect must be arrested or rather be dealt
with as provided for
in subparagraph (3) below.
(3)
A member, even though authorised by law, should normally
refrain from arresting a person if—
a.
the attendance of a person may be secured
by means of a summons as provided for in
section 54
of the
Criminal
Procedure Act, 1977
; or
b.
the member believes on
reasonable grounds
that a
magistrate’s court, on convicting such person of that offence,
will not impose a fine exceeding the amount determined
by the
Minister from time to time by notice in the
Government Gazette
,
(at present R1500-00), in which event such member may hand to the
accused a written notice [J 534] as a method of securing his
or her
attendance in the magistrate’s court in accordance with
section
56
of the
Criminal Procedure Act, 1977
.”
[54]
In the case of
Louw
v Minister of safety and Security
[15]
Bertelsmann J held that: “… if an accused or
suspect does not present a danger to society, will in all probability
stand his trial, will not abscond, will not harm himself and is not
in danger of being harmed by others, and may be able and be
keen to
disprove the allegations against him or her, an arrest will
ordinarily not be the appropriate way of ensuring the accused’s
presence”.
[16]
With
reference to an article by the late Etienne Mureinik, ‘
A
Bridge to Where?: Introducing the Interim Bill of Rights
’
[17]
and an article by Plasket J (as he then was) on the exercise of power
to arrest without a warrant
[18]
,
Bertelsmann J held as follows:
“
What
these statements mean is that the police 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 is obtained, then it is constitutionally
untenable to exercise
the power to arrest.
[19]
[55]
In
Charles
v Minister of Safety & Security,
[20]
Goldblatt J held that the legislator granted a peace officer the
right to conduct an arrest in the circumstances set out in
section 40
of the CPA, and created a situation where due compliance with that
section by the peace officer is lawful and affords him or her
protection against an action for unlawful arrest. In the
Charles
case the judgment in
Louw
was rejected as wrong. I am in respectful agreement with the
approach adopted by Bertelsmann J in the
Louw
matter.
[21]
[56]
Once the jurisdictional facts for an arrest are present, a discretion
whether or not to arrest arises.
As a general rule, the object of an
arrest is to secure the attendance of such person at his or her
trial. In accordance
with the Standing Order regarding the
arrest of a person, a member may not arrest a person in order to
punish, scare, or harass
such person. There can be no doubt the
discretion to arrest must be properly exercised.
[22]
[57]
From the testimony of WO Mhlafu it is evident that he acted under the
mistaken belief that, once it
had been established that the plaintiff
committed a Schedule 1 offence in his presence, he was obliged to
arrest her. He furthermore
testified that he was humiliated by her
words and felt that she had to be punished for offending him. It
has been established
that WO Mhlafu was erroneously under the
impression that
crimen injuria
is a Schedule 1 offence.
Subsequent to becoming aware of the fact that the plaintiff was
diagnosed with cancer, that she
had “urinated” (as
referred to by Constable Mafabatho), in the charge office and that
she did not have her medication
with her, the failure to assist the
plaintiff to obtain dry clothes and her medication leaves one with a
rather grim view of WO
Mhlafu’s understanding of his obligation
to treat all suspects with dignity and respect. It is evident that
he, in accordance
with his testimony, felt that she had to be
punished for uttering the racial remarks and offensive words.
[58]
WO Mhlafu did not consider any other option to ensure the presence of
the plaintiff in court.
Given his constitutional duties WO Mhlafu did
not exhaust the option of using a written notice to ensure the
presence of the plaintiff
in court. He arrested the plaintiff with
the intent to punish her.
The
question whether an arresting officer
properly,
if at all, exercised the discretion vested in him as required by law
was considered in the matter of
Diljan
v The Minister of Police
[23]
.
Both the arresting officers in the
Diljan
matter testified that they did not have the authority to secure the
attendance of the plaintiff in court in any other way accept
through
her arrest. They were not aware of the fact that they were vested
with the discretion of whether or not to arrest the suspect
or with a
further
discretion
whether to detain the arrestee or warn him or her to attend court. In
Diljan
the court held as follows:
“
Accordingly,
that they did not exercise a discretion that they unquestionably
enjoyed is beyond dispute. It must therefore follow
axiomatically
that both the arrest and subsequent detention of the appellant were
unlawful.”
[24]
[59]
In
Mpale
NO v Minister of Police
[25]
,
the trial court took into consideration the fact that the offence was
not of a serious nature in deciding that there was no need
to arrest
and detain. Less stringent and less invasive procedures were
available to secure the suspects’ attendance at court.
Once a
person has been arrested
for
the purpose of having him or her prosecuted,
there rests a
duty
on a police officer, to give a fair and honest statement of the
relevant facts to the prosecutor, leaving it to the latter
to decide
whether to prosecute or not. T
he
provisions of the section 12(1) of the Constitution place an
obligation on members of the SAPS, who are bestowed with duties
to
arrest and detain persons charged with and/or suspected of the
commission of criminal offences, to establish before detaining
the
person, the justification and lawfulness of such arrest and
detention.
[60]
What is rather concerning is the inscription “DV”,
an abbreviation for the word “domestic violence” written
next to the complaint of
crimen injuria
and in the occurrence book made in connection with the arrest of the
plaintiff. In terms of the provisions of section 40 (1)(q)
of the CPA
a peace officer may arrest any person without a warrant who is
reasonably suspected of having committed an act of domestic
violence
as contemplated in
section 1
of the
Domestic Violence Act, 1998
,
which constitutes an offence in respect of which violence is an
element. Constable Makatu testified that he is unable to
explain why he wrongly indicated that the matter is domestic violence
related.
[61]
It is common cause between the parties that the incident regarding
the racial slur uttered by
the plaintiff could never have been an
incident of domestic violence between WO Mhlafu and the plaintiff. It
appears as if the
police docket and occurrence book had been
interfered with in an attempt to justify the arrest and subsequent
detention of the
plaintiff to be in accordance with the provisions of
section 40(1)(q)
of the CPA.
[62]
The entire record of the proceedings regarding the criminal trial
held at Odendaalsrus Regional Court (Case
no: A334/2019) on the
charge of
crimen injuria
was not placed before this court. A
section of the record containing the testimony of WO Britz is
included in the “Plaintiffs’
Discovery Bundle”. It
was however placed on record that the plaintiff was acquitted and no
further details pertaining to
the criminal trial were made available
to this court during the hearing of this matter.
[63]
In light of a foregoing, this court finds that WO Mhlafu failed to
exercise his discretion in
a proper manner, or at all, in deciding
whether the plaintiff must be arrested or not. Therefore, the
defendants have failed to
discharge the onus incumbent upon the
defendants to prove, on a balance of probabilities, that the arrest
of the plaintiff was
lawful in terms of subsection 40(1)(a) of the
CPA.
ORDER:
[64]
In the result:
1.
The defendants are liable for the unlawful arrest and detention of
the plaintiff
on 9 March 2019 from the time of her arrest until her
release.
2.
The defendants are directed to pay the costs of suit, jointly and
severally, the one
paying the other to be absolved.
_______________________
VAN
RHYN J
On
behalf of the Plaintiff:
ADV
P C PLOOS VAN AMSTEL
Instructed
by:
KRUGER
VENTER ATTORNEYS
BLOEMFONTEIN
On
behalf of the Defendants:
ADV.
D DE KOCK
Instructed
by:
STATE
ATTORNEY
BLOEMFONTEIN
[1]
Act 51 of 1977.
[2]
Minister of Justice v Hofmeyr 1993 (3) SA 131 (AD).
[3]
Sections
7, 8, 10 and 12 of the Constitution.
[4]
2012
(1) SACR 305
(ECP).
[5]
Botha v Minister of Safety and Security (supra) at [29] and
[30].
[6]
2009
(3) SA 434 (WLD).
[7]
Olivier
(supra) at 445C.
[8]
2003 (1) SA 11
(SCA) at [5].
[9]
2008
(1) SACR 56
(CC) at p64 a-b.
[10]
2016
(2) SACR 540 (CC).
[11]
2010
(1) SACR 388 (FB).
[12]
Act
68 of 1995.
[13]
Fose
v Minister of Safety and Security 1997 (3) SA 786 (CC).
[14]
Standing
Order (G) 341, issued under Consolidation Notice 15/1999 and titled
“Arrest and the Treatment of
an Arrested Person until Such
Person is Handed Over to the Community Service Centre Commander”.
[15]
2006 (2) SACR 178 (TPD).
[16]
Louw (supra) at 185d-e.
[17]
(
1994)
10 SAJHR 31
at p 32.
[18]
Controlling the discretion to arrest without warrant through the
Constitution, Suid-Afrikaanse Tydskrif vir
Strafregspleging
(11) 1998 at 173.
[19]
Louw (supra) at 187d-e.
[20]
(17599/01
[2006] ZAGPHC 33
(21 April 2006).
[21]
Olivier
(supra) at 445 A-C.
[22]
Duncan v Minister of Law and Order 1986 (2) SA 805 (A).
[23]
Case No 746/2021
[2022] ZASCA 103
(24 June 2022).
[24]
Diljan (supra) at [12].
[25]
Unreported,
GJ appeal case no A3133/2017, 26 April 2019 at [16]
.