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[2024] ZAECBHC 4
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MASWANA v Minister of Police (CA25/2023) [2024] ZAECBHC 4 (16 April 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, BHISHO)
NOT REPORTABLE
Case no: CA25/2023
In the matter between:
SINDISO
MASWANA
Appellant
and
MINISTER OF POLICE
Respondent
FULL COURT APPEAL
JUDGMENT
Govindjee J
Background
[1]
The
appellant was arrested without a warrant of arrest and charged with
robbery some seven months after an incident at the Nozukile
Spar in
Peddie (‘the Spar’). The appellant was employed as a
forklift driver at the Spar at the time of the incident.
Charges
against him were subsequently withdrawn. A damages claim for unlawful
arrest and detention was dismissed with costs by
the court
a
quo
. The grounds of appeal include
various challenges regarding the assessment of the evidence presented
during trial, particularly
the findings that the arresting officer
entertained a reasonable suspicion prior to arrest, properly
exercised his discretion in
proceeding with the arrest and lawfully
detained the appellant.
Where and when did the
arrest take place?
[2]
The
appellant was arrested by Sergeant Booi, the investigating officer.
Sergeant Booi’s involvement with the matter dated
back to 1 May
2017. The evidence as to the incident itself was that a security
guard was pointed at with a firearm and tied up,
prior to three safes
being bombed in the store’s strong room. The shop was ransacked
and cash in the amount of R300 000,00
was taken. During the
course of the robbery, police officers situated close to the store
had heard the explosions and arrived at
the scene. The police
exchanged fire with the robbers, who were attempting to escape and
one police official was shot. Approximately
35 cartridges were
collected inside the Spar after the incident.
[3]
Some
seven months later, an informer contacted Sergeant Booi and
specifically mentioned that a person known as ‘Kwalo’
was
involved in the robbery, explaining that he was employed at the Spar
that had been robbed as a ‘Hyster’ forklift
driver.
Sergeant Booi therefore proceeded to Peddie to identify ‘Kwalo’
and talk to him. His enquiries led him to the
appellant, as the
person who drove the Hyster. Other employees confirmed that the
appellant’s nickname was ‘Kwalo’.
The risk manager
therefore called the appellant to have a discussion with Sergeant
Booi. The appellant did so voluntarily.
[4]
Sergeant
Booi explained that it was normal practice to interview a person
outside their comfort zone, and that no arrest took place
at the Spar
itself. The court
a
quo
accepted that the plaintiff had been arrested in Peddie, and not in
East London as maintained by Sergeant Booi. That finding is
unchallenged on appeal. The court
a
quo
nonetheless accepted the crux of Sergeant Booi’s evidence as
credible, finding only that he had not been candid in maintaining
that the arrest occurred in East London.
[1]
[5]
Sergeant
Booi’s insistence that the arrest only occurred in East London,
coupled with the manner of his testimony, which frustrated
the trial
court, may easily obfuscate the proper sequence of events. It is
apparent that the trial court accepted that the arrest
occurred after
the appellant was questioned by Sergeant Booi and admitted some
knowledge of the incident. The first issue to be
determined is
whether this was indeed the case, or whether the arrest occurred
prior to this interview.
[6]
The
facts of the matter emerge from various extracts of the record,
quoted below. Sergeant Booi’s testimony must be considered
in
its entirety together with the evidence of the appellant.
[7]
In
response to the question whether the arrest occurred at the Spar in
Peddie, Sergeant Booi responded as follows:
‘
Mr
Booi:
I
spoke with him and when I spoke with him, and I explained to him that
the reason for my visit here is to talk to you about the
robbery, of
which Ms Maswana said to me that he knows about this thing and then I
said to him okay, it is fine, I already asked
Mr Gronewald to borrow
me you for a short time so that we can go and talk about it. This is
what happened…Even though he
said to me yes I know about this,
then I said to him let us go, so at that time it was 50/50, because I
needed to know what he
was going to say about the actual crime…
Mr Ndamase:
Mr
Booi, when you were at Spar talking to Maswana, did you suspect that
he had committed the crime?
Mr Booi:
I
said at that point there was nothing … I told him that I am
here because of the robbery that occurred here on this day
and so on
of which he knew and he appeared to know about everything and I said
to him that is fine, then I am already given a permission
to go with
you … at that point I did not have a reasonable suspicion …’
[8]
Sergeant
Booi added the following during re-examination:
‘
When
I spoke to Mr Sindiso Maswana, being given permission to go with him,
we all left, he was not handcuffed M’Lord …
We were
walking next to each other into the vehicle and my partner and we
went to Peddie SAPS and I could not leave him in the
vehicle and I
said let us go in …
[9]
The
version put on behalf of the appellant was as follows:
‘…
on
that date of 12 December in 2017 you arrived at Spar and that is
where he was arrested. He says from there he was taken to Peddie
Police Station. At Peddie Police Station he was interviewed about the
robbery at Spar and asked specifically, you came and asked
him about
the gentleman called Mahoyi, whom he did not know. He says that he
told you that he knows nothing about the crime that
you are asking
him about, the robbery.’
[10]
While
that may have been his evidence in chief, the court
a
quo
correctly determined that the
appellant’s version, particularly as it emerged during
cross-examination, was at odds with the
version put on his behalf.
There are at least two reasons for this. Firstly, the appellant
readily conceded that he had voluntarily
agreed to accompany Sergeant
Booi for questioning. Sergeant Booi had made this request upon
arrival at Spar and, as he testified,
there was no real suspicion and
no reason to arrest the appellant at that stage. Based on this
evidence it cannot be said that
the arrest occurred at the Spar prior
to any proper interview. The appellant left with Sergeant Booi for
questioning voluntarily,
Sergeant Booi having indicated that they
would proceed ‘to the nearest police station’.
[11]
Secondly,
the appellant, on his own version, disclosed the following
information during the questioning that followed:
‘
Mr
Mayekiso Did he question you in Peddie, at the Police Station or as
you were driving?
Mr Maswana He asked me at
Peddie.
Mr Mayekiso And then as
he was asking you,
did you mention anything about Eddie
, in
your answer to his question?
Mr Maswana
No, I never
did so
, he asked me about Mahoyi, then I did not know Mahoyi,
then it is then he told me that when I was not knowing Mahoyi, I’ll
know him because he was taking me to East London.’
…
Mr Mayekiso:
…
Then,
this name of Eddie came up from you as Mr Booi was
interrogating you
about the pictures that were taken by the
camera at the shop. The name of Eddie came as you were being
interrogated by Mr Booi
about the pictures that were taken by camera.
Mr Maswana:
Yes,
that is correct.
Mr Mayekiso:
At
the time in which Mr Booi was interrogating you, were you in East
London when he interrogated you about those pictures?
Mr Maswana We were at
Peddie.
…
Mr Mayekiso
You told
Mr Booi about Eddie whilst you were still at the Peddie Police
Station being interrogated.
Is that so?
Mr Maswana
Yes.
Mr Mayekiso Did you
indicate to Mr Booi, that you suspect that Eddie might have been
involved in the housebreaking and robbery that
took place at Spar?
Mr Maswana No, I
couldn’t, M’Lord, because what was shown there, was Eddie
being inside of the motor vehicle, nothing
indicated that Eddie was
there with the intentions of doing burglary at Spar.
Mr Mayekiso After that,
you left Peddie with Mr Booi to East London, is that so, sir?
Mr Maswana: Yes, that’s
correct … He did not indicate to me that I was taken to East
London for interrogation but he
said to me that I will tell the truth
[in East London] …
By the time we were going to East
London, I was handcuffed and the phone was taken from me … We
lastly talked with each other
at Peddie
, when we arrived in East
London, he never talked to me again he was just talking with his
commander.’ (Own emphasis.)
[12]
Aspects
of Sergeant Booi’s recollection of the contents of the
interview are extracted, below. For present purposes, considering
the
evidence of both Sergeant Booi and the plaintiff, what appears to be
clear is that the decision to arrest was taken only after
the
plaintiff, when confronted, indicated at least some knowledge of the
events in question. The trial court was accordingly correct
in
assessing that the arrest occurred after Sergeant Booi’s
questioning. It must be accepted that this occurred at the Peddie
Police Station, and not at the Spar itself.
A reasonable suspicion
[13]
The
second issue to be determined is whether there could be said to be a
reasonable suspicion that the appellant had committed an
offence
referred to in schedule 1 of the Criminal Procedure Act, 1977, (‘the
CPA’) prior to arrest.
[14]
Sergeant
Booi’s evidence was that his interview with the appellant
lasted approximately an hour. The appellant admitted having
knowledge
of the robbery prior to its occurrence. He had not reported this
information because he was afraid of the men involved.
When asked who
was responsible, he mentioned the name ‘Eddie’. He also
explained his connection with Eddie. They were
friends, had
previously lived together around the Garden Route area and maintained
telephonic contact. The appellant told Sergeant
Booi that Eddie had
made enquiries about his workplace, including where money was kept on
site. Eddie wanted ‘to come and
check the situation himself
with his friends’. The appellant tried to explain to Sergeant
Booi that he had inadvertently
given relevant information about Spar
to Eddie. The appellant also told Sergeant Booi that he had joined
Eddie and six or seven
of Eddie’s friends for drinks on the
evening in question, and that they proceeded together in the
direction of Spar. The
appellant specifically pointed out the Spar to
Eddie and his friends, before waiting in a nearby shebeen. He heard
the loud bang
and ‘he knew exactly that these guys they are
robbing the store. That is what he told me.’
[15]
According
to Sergeant Booi, this information emerged after the appellant was
advised that a source had informed the police about
his involvement
and questioned about leaving a step ladder outside the store. It was
during the course of this questioning, including
the appellant’s
explanation of the extent of his involvement, that Sergeant Booi
exercised his discretion to arrest the appellant.
He subsequently
asked him if he wished to make a formal statement and arranged for
Captain Alexander to note the supposed confession.
The gist of this
evidence is supported by the contents of a written statement made on
the day of the arrest, as well as the evidence
of Captain Alexander.
[16]
Sergeant
Booi explained his reason to arrest the appellant as follows:
‘
When
I spoke with him I realised that there are so many things that he
could not answer. One, the reason why he left the step ladder
there.
Two, the time that he left from his place to show those people at
Spar. He still had time to make a phone call, because
his manager was
staying not far from his house …So he had ample time to make a
call to alert people, the police station
was next to him. So at that
time I decided that this guy was involved and he is the person that
gave out information as he confirmed
that. So at that time I decided
to place him under arrest.’
[17]
He
later added the following:
‘
Why
M’Lord, because if we looking to the seriousness of this crime
that occurred at Peddie. Two, he had ample time to report
the matter
before and after the crime, if he was really like scared of this
Eddie guy. Three, before he made a confession which
was noted down by
Captain Alexander then he already told me exactly what he told
Captain Alexander. So I had a reason to arrest
him.’
[18]
The
point that what was contained in the so-called confession had already
been said to Sergeant Booi was repeated more than once
during
cross-examination. Sergeant Booi also emphasised the seriousness of
the alleged offence in order to explain why other means
of bringing
the appellant before court were not considered. Sergeant Booi
explained that he had not noted all the details of his
conversation
with the appellant in his statement. This was unnecessary in his view
because the appellant was in any event prepared
to make a sworn
statement pertaining to his involvement.
[19]
Although
he was mistaken in recalling the arrest to have occurred in East
London, he consistently explained that there was no reason
for him to
arrest the appellant at the Spar itself. Leaving aside the aspect of
the place of the arrest, Sergeant Booi’s
evidence provides a
cogent explanation of the sequence of events, and is supported by the
contents of the statement made to Captain
Alexander the following
day. The contents of the statement taken by Captain Alexander were
not seriously disputed by the appellant
during his testimony. The
appellant denied that the statement made to Captain Alexander
constituted a confession, but never disputed
the contents of that
statement, contrary to what was put to Sergeant Booi. That statement
supports Sergeant Booi’s evidence
as to the extent of his
interview with the appellant prior to arrest. This despite various
details not being included in his written
statement at the time.
[20]
What
emerges from the appellant’s responses during cross-examination
is that he was not necessarily candid about his own suspicions
of
Eddie’s movements and involvement in the incident during
initial questioning at the Peddie Police Station. Considering
his own
testimony, the appellant named Eddie when talking to Sergeant Booi in
Peddie, having been shown pictures seemingly taken
by a camera placed
at the scene of the crime. At least one of the pictures showed
Eddie, a person known to the appellant.
On his own version, however,
he initially withheld information and did not make a full disclosure
about his interactions with Eddie.
This appears to have been purely
because he assessed the evidence shown to him at the police station
as being inconclusive.
[21]
This
reading of the evidence accords with the crux of the testimony of
Sergeant Booi, and the finding of the court
a
quo
, that the arrest occurred only
after this interaction between Sergeant Booi and the appellant,
during which time Sergeant Booi’s
suspicions were aroused.
While Sergeant Booi persistently erred in respect of the place of
arrest, this is insufficient on its
own to result in the complete
disregard of the balance of his evidence, as argued by Mr
Kotzé
,
counsel for the appellant. The totality of the evidence supports the
sequence of events that Sergeant Booi attempted to explain.
It also
accords with the essence of the pleaded case, which differentiates
between the ‘formal confession’ and the
statement made to
Sergeant Booi, and the pre-trial minute. It may be added that the
appellant’s lack of candour continued
during trial. His initial
response during cross-examination was only to refer to Sergeant Booi
asking him about Mahoyi, in accordance
with the version put on his
behalf. In fact, as is apparent from his later testimony, he engaged
with Sergeant Booi about Eddie
when shown the pictures and was
arrested after this interaction when Sergeant Booi suspected that he
was withholding information.
Sergeant Booi then decided that the
appellant should be taken to East London in the hope that he would
tell the truth there. The
appellant was handcuffed and his phone
confiscated.
Detention
[22]
Once
the appellant had been arrested, and his notice of rights
communicated, he was transported to East London for detention.
Sergeant
Booi’s written statement confirms this.
[2]
The appellant was charged with business robbery and attempted murder
after Sergeant Booi received the so-called confession statement
from
Captain Alexander.
[23]
As
for the possibility of releasing the appellant after his arrest,
Sergeant Booi explained that the alleged crimes were serious,
particularly because firearms and explosives were used, a police
official had been shot and a large amount of money taken. A schedule
6 offence was suspected, so that releasing the appellant prior to his
first appearance in court would have been inappropriate.
Analysis
[24]
Appeal
courts are reluctant to upset the factual findings of a trial judge.
The authorities confirm that even in drawing inferences
the trial
court may be in a better position than the appellate court, being
more able to estimate what is probable or improbable
in relation to
the witnesses observed at trial. Sometimes, however, the appellate
court may be in as good a position as the trial
judge to draw
inferences, where they are either drawn from admitted facts or from
the facts as found by the trial judge.
[3]
Absent misdirection of fact by the trial judge, the presumption is
that his conclusion is correct, an appeal court only reversing
it
when convinced that it is wrong.
[4]
It is trite that an appeal court should not anxiously seek to
discover reasons adverse to the conclusions of the trial judge.
[25]
The
evidence that emerged during the cross-examination of the appellant
accords with much of the respondent’s case. Consequently,
the
versions of Sergeant Booi and the appellant cannot be said to be
irreconcilable in respect of many of the key issues. The location
of
their main interview is the notable exception, the court
a
quo
correctly accepting the appellant’s
version in this regard.
[26]
When
considering all the evidence, it cannot be said that the trial court
misdirected itself in its assessment of the material facts
pertinent
to the appellant’s arrest and detention. The court
a
quo’s
conclusions in respect of
the arrest and detention are, therefore, presumed to be correct. In
particular, the court
a quo
correctly accepted the crux of the respondent’s evidence,
leaving aside the issue of the place of the arrest. Although the
examples provided by the court
a quo
may
be questioned, the learned judge rightly assessed the version of the
appellant as leaving much to be desired. In this respect,
the
impression created during the appellant’s evidence-in-chief was
that he was arrested on the spot at Spar without reason.
His phone
was confiscated and he was taken to the Peddie Police Station. There
he was asked about Mahoyi, a person unknown to him.
He also conveyed
the impression that he knew nothing about the incident itself, having
simply accompanied Eddie and his friends
during a night on the town
before becoming separated from them. His version changed drastically,
and in material respects, during
cross-examination, as indicated
above.
[27]
Wrongful
arrest and detention cases must each be decided on their own
facts.
[5]
The test is not to be
applied in a vacuum. It is subject to the facts and the context,
which may be crucial.
[6]
The
factual context will be provided by matters such as the nature of the
crime, the elements thereof, the source and the nature
of the
information on which the suspicion is said to be based, and its
significance in supporting the suspicion entertained by
the arresting
officer.
[7]
Was there a
reasonable suspicion?
[28]
A
suspicion, by definition, means the absence of certainty.
[8]
In its ordinary meaning it is a state of conjecture or surmise where
proof is lacking. Suspicion arises at or near the starting
point of
an investigation of which the obtaining of prima facie proof is the
end. When such proof has been obtained, the police
case is complete;
it is ready for trial and passes on to its next stage.
[9]
[29]
An
arrestor’s grounds for suspicion must be reasonable from an
objective point of view.
[10]
The circumstances giving rise to the suspicion must be such as would
ordinarily move a reasonable person to form the suspicion
that the
arrestee had committed a first schedule offence.
[11]
The reasonableness requirement extends inter alia to the reliability
or accuracy of the information upon which an arrest is founded,
including the quality and ambit thereof.
[12]
[30]
It
has also been held that ‘[t]he standard of a reasonable
suspicion is very low. The reasonable suspicion must be more than
a
hunch; it should not be an unparticularised suspicion. It must be
based on specific and articulable facts or information …
[and]
based on credible and trustworthy information.’
[13]
[31]
The
SCA has cited the following paragraph of the judgment of Jones J, in
this division, with approval:
[14]
‘
The
test of whether a suspicion is reasonably entertained within the
meaning of s 40(1)
(b)
is objective … Would a reasonable man in the second
defendant’s position and possessed of the same information have
considered that there were good and sufficient grounds for suspecting
that the plaintiffs were guilty of [the schedule 1 offence]
…
It seems to me that in evaluating his information a reasonable man
would bear in mind that the section authorises drastic
police action.
It authorises an arrest on the strength of a suspicion and without
the need to swear out a warrant, ie something
which otherwise would
be an invasion of private rights and personal liberty. The reasonable
man will therefore analyse and assess
the quality of the information
at his disposal critically, and he will not accept it lightly or
without checking it where it can
be checked. It is only after an
examination of this kind that he will allow himself to entertain a
suspicion which will justify
an arrest. This is not to say that the
information at his disposal must be of sufficiently high quality and
cogency to engender
in him a conviction that the suspect is in fact
guilty. The section requires suspicion but not certainty. However,
the suspicion
must be based on solid grounds. Otherwise, it will be
flighty or arbitrary, and not a reasonable suspicion.’
(References
omitted).
[32]
This
does not imply that the quality of the information upon which the
arrestor acts must be analysed and assessed and that acting
on the
information, the quality of which has not been subjected to scrutiny,
will render an arrest unlawful.
[15]
The reasonable person is the person of ordinary intelligence,
knowledge and prudence. A mistake of fact is not reasonable if it
is
due to lack of such knowledge and intelligence as is possessed by an
ordinary person, or if it is due to such carelessness,
inattention
and so forth, as an ordinary person would not have exhibited.
[16]
[33]
Police
officers are required to have regard to the facts and circumstances
at their disposal and, where reasonably possible, to
satisfy
themselves of the merits thereof.
[17]
If, in a particular case, the quality of the information at the
disposal of the police officer is so tenuous or conflicting that
it
cannot objectively sustain a suspicion as envisaged in s 40(1)
(b)
,
the police officer may first have to make further enquiries before an
arrest is affected.
[18]
The
focus of the enquiry is the information at the disposal of the
arresting officer, which information is to be measured against
the
standard of reasonableness, as opposed to the reasonableness of the
conduct of the police officer concerned.
[19]
[34]
Applying
these considerations to the facts at hand, and bearing in mind the
various reasons advanced by Sergeant Booi for effecting
the arrest,
quoted above, I am of the view that there were objectively reasonable
grounds to suspect the appellant of committing
a schedule 1 offence.
While mindful that the section authorises drastic, invasive action,
Sergeant Booi’s suspicion cannot
be said to be ‘far-fetched,
misguided or patently mistaken’.
[20]
It was based on a range of specific and articulable facts. Crucially,
the information relied upon included significant details
conveyed by
the appellant himself. The fact that that information may not
constitute an actual confession is, in these circumstances
and for
purposes of this enquiry, immaterial. The section only requires
suspicion on solid grounds, and not certainty as to guilt.
On the
probabilities, Sergeant Booi’s suspicion was reasonably
entertained. A reasonable person in possession of similar
information
would have considered there to be sufficient grounds to suspect that
the appellant had committed a schedule 1 offence.
Was the discretion
exercised properly?
[35]
The
arresting officer nonetheless enjoys a discretion whether to arrest a
person, to be exercised in an objectively rational and
non-arbitrary
way.
[21]
A court will not
interfere with the result of the exercise of a discretion that has
been bona fide exercised or expressed, the
arresting officer duly and
honestly applying themselves to the question left to their
discretion.
[22]
Even a
discretion exercised in a manner deemed sub-optimal by the court will
not breach the standard:
‘
A
number of choices may be open … all of which may fall within
the range of rationality. The standard is not perfection,
or even the
optimum, judged from the vantage of hindsight and so long as the
discretion is exercised within this range, the standard
is not
breached.’
[23]
[36]
The
factors to be weighed in exercising the discretion must be gleaned
from a consideration of the CPA as a whole, including consideration
that an arrest is one step in the process of bringing a suspect to
justice, rather than isolated focus on s 40.
[24]
[37]
Although
the purpose of arrest is to bring the suspect to trial, the
arrestor’s role in that process is limited. In cases
of serious
crime, including those crimes listed in schedule 1, a peace officer
could seldom be criticised for arresting a suspect
for that
purpose.
[25]
Again, the
enquiry is fact specific and it is neither prudent nor practical to
formulate a general rule.
[26]
[38]
Considering
these principles, the plaintiff has failed to prove that the
discretion was exercised in an improper manner.
[27]
In particular, and as explained by Sergeant Booi, the seriousness of
the offences in question justified the exercise of discretion
to
proceed to arrest the appellant without a warrant. The court
a
quo
cannot be criticised for arriving at this conclusion.
The detention
[39]
The
circumstances under which an arrested person may be released from
custody before their first court appearance are circumscribed
by the
CPA. Various sections fetter the discretion of the police and render
it extremely difficult for the police to grant bail
in terms of s 59
of the CPA, considering the listing of the alleged offences in
question as scheduled offences. Sergeant Booi’s
testimony in
respect of detention accords with this. Again, the emphasis placed on
the seriousness of the alleged offences was
not misplaced. That being
the case, I am satisfied that the respondent also discharged the onus
resting on them to justify the
appellant’s detention,
[28]
so that the appeal must be dismissed.
Costs
[40]
The
case turns on the facts and there is no impediment to costs following
the result.
Order
[41]
The
appeal is dismissed with costs.
A GOVINDJEE
JUDGE OF THE HIGH
COURT
I agree.
J G A LAING
JUDGE OF THE HIGH
COURT
I agree.
M S DUNYWA
ACTING JUDGE OF THE
HIGH COURT
Heard: 25 March 2024
Delivered: 16 April
2024
Appearances:
For the
Appellant:
Adv C D Kotzé
Chambers,
East London
Instructed
by:
Cinga Nohaji Inc.
Appellant
Attorneys
29
Gladstone Street
1
st
Floor, Office No.7-8
Central
Square Building
East
London
Tel:
043 722 2165
For the
Respondent:
Adv M Mayekiso
Chambers,
East London
Instructed by:
State Attorney
Respondent’s
Attorneys
17
Fleet Street
Old
Spoornet Building
Cnr.
Fleet & Station Street
East
London
Tel:
043 706 5100
[1]
To quote from the judgment of the court
a
quo
:
‘…
he
entertained the suspicion at Peddie as a result of which he decided
to arrest the plaintiff. The objective facts of this case
demonstrate that Booi had reasonable grounds for the suspicion in
Peddie hence he decided to arrest the plaintiff. He watched
a CCTV
camera in Peddie where he saw the plaintiff. He questioned him and
was told about Eddie and his visit to Peddie. He saw
the step ladder
and questioned the plaintiff about it and could not get satisfactory
answers. Furthermore, at the pre-trial conference,
the defendant
agreed that the plaintiff was arrested at Spar after he had made a
“confession”.’
[2]
As
an aside, the manner of formulation of that statement may also
explain Sergeant Booi’s persistence that the arrest occurred
only in East London.
[3]
See
Union
Spinning Mills (Pty) Ltd v Paltex Dye House (Pty) Ltd and Another
2002 (4) SA 408
(SCA) para 24: although courts of appeal are slow to
disturb findings of credibility they generally have greater liberty
to do
so where a finding of fact does not essentially depend on the
personal impression made by a witness’ demeanour but
predominantly
upon inferences from other facts and upon
probabilities. In such a case a court of appeal, with the benefit of
an overall conspectus
of the full record, may often be in a better
position to drawn inferences, particularly in regard to secondary
facts.
[4]
R
v Dhlumayo and Another
[1948]
2 All SA 566
(A);
1948 (2) SA 677
(A). There may be a misdirection
of fact by the trial judge where the reasons are either on their
face unsatisfactory or where
the record shows them to be such; there
may be such a misdirection also where, though the reasons as far as
they go are satisfactory,
he is shown to have overlooked other facts
or probabilities. The appeal court is then at large to disregard the
findings on fact
in whole or in part according to the nature of the
misdirection and the circumstances of the case, and to come to its
own conclusion
on the matter.
[5]
Minister
of Safety and Security v Van Niekerk
2008
(1) SACR 56
(CC);
2007 (10) BCLR 1102
(CC) paras 17, 20.
[6]
Ibid.
[7]
Minister
of Police v Dunjana and Others
[2023]
1 All SA 180
(ECG) (‘
Dunjana
’)
para 18. In
Mabona
and Another v Minister of Law and Order and Others
1988 (2) SA 654
(E) (‘
Mabona
’),
the reasonableness of the suspicion of the arresting officer was
determined in the context of the fact that the source
of the
information, on which the officer based his suspicion, was an
anonymous informer – a fact that would have caused
a
reasonable police officer to be more cautious.
[8]
Dunjana
above
n 7
para
17.
[9]
Duncan
v Minister of Law and Order
1986
(2) SA 805
(A) (‘
Duncan
’)
at 819I;
Minister
of Law and Order v Kader
1991 (1) SA 41
(A) at 50H;
Powell
NO and Others v Van der Merwe NO and Others
2005
(5) SA 62
(SCA) (‘
Powell
NO
’)
para 37, citing
Shabaan
Bin Hussien & Others v Chong Kam & Another
[1969] 3 All ER 1626
(PC) at 1630C–D.
[10]
Duncan
above
n 9
at
814D–F. The suspicion need not be based on information
that would subsequently be admissible in a court of law:
Biyela
v The Minister of Police
[2022]
ZASCA 36
(‘
Biyela
’)
para 33.
[11]
Mananga
and Others v Minister of Police
[2021]
ZASCA 71
(‘
Mananga
’)
para 20.
[12]
Biyela
above
n 10 paras 23, 24.
[13]
Biyela
above
n 10 paras 34, 35. A suspicion might be reasonable even if there is
insufficient evidence for a prima facie case against
the arrestee:
Duncan
above n 9 at 819I – 820B.
[14]
Mabona
above
n 7 at 658E–H as cited in
Brits
v Minister of Police and Another
[2021]
ZASCA 161
para 20.
[15]
Dunjana
above
n 7 para 21.
[16]
R
v Mbombela
1933
AD 269
at 272.
[17]
Mananga
above
n 11
para
16.
[18]
Dunjana
above
n 7 para 20. A resultant finding that the police officer could not
reasonably have formed a suspicion, as required, is because
the
information at his disposal was insufficient to sustain such a
suspicion, and not because there was a failure to investigate
information given by an arrestee.
[19]
Dunjana
above
n 7 para 21.
[20]
Powell
NO
above
n 9 para 38.
[21]
The
objective enquiry is to determine whether the decision was
rationally related to the purpose for which the power was given:
Pharmaceutical
Manufacturers Association of SA: In Re Ex Parte Application of the
President of the RSA
[2000] ZACC 1
;
2000
(2) SA 674
;
2000 (3) BCLR 241
(CC) paras 85–86 as cited in
The
Minister of Safety and Security v Sekhoto and Another
[2010]
ZASCA 141
(‘
Sekhoto
’)
para 36.
[22]
Shidiack
v Union Government
(Minister
of the Interior)
1912 AD 642
at 651–652, as cited in
Sekhoto
above n 21 paras 34–36.
[23]
Sekhoto
above
n 21 para 39.
[24]
Sekhoto
above
n 21 para 40 and following.
[25]
Sekhoto
above
n 21 para 44: ‘It is sufficient to say that the mere nature of
the offences of which the respondents were suspected
in this case –
which ordinarily attract sentences of imprisonment and are capable
of attracting sentences of imprisonment
for 15 years –
clearly justified their arrest for the purpose of enabling a court
to exercise its discretion as to
whether they should be detained or
released and if so on what conditions, pending their trial.’
[26]
MR
v Minister of Safety and Security
2016
(2) SACR 540
(CC) para 42.
[27]
Duncan
above
n 9 at 819B–D;
Sekhoto
above n 21 para 49. Also see
Banda
v Minister of Police NO
[2021]
JOL 50674
(ECG) para 51 and following.
[28]
See
Banda
above n 27 para 61 and following.