About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2010
>>
[2010] ZASCA 141
|
|
Minister of Safety and Security v Sekhoto and Antoher (131/10) [2010] ZASCA 141; 2011 (1) SACR 315 (SCA) ; [2011] 2 All SA 157 (SCA); 2011 (5) SA 367 (SCA) (19 November 2010)
Links to summary
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Case No: 131/2010
In
the matter between:
THE
MINISTER OF SAFETY AND SECURITY
...............................................
Appellant
and
TSHEI
JONAS SEKHOTO
..................................................................
First
Respondent
OUPA
MOSUWU JOSEPH MADONSELA
Also
known as OUPA JOHANNES SIBEKO
...............................
Second
Respondent
Neutral
citation:
Minister of Safety and Security v Sekhoto
(131/10)
[2010] ZASCA 141
(19 November 2010)
Coram:
Harms DP, Nugent, Lewis and Bosielo JJA and K Pillay AJA
Heard:
02 November 2010
Delivered:
19 November 2010
Summary:
Arrest – without warrant – s 40(1)
Criminal Procedure
Act 51 of 1977
– jurisdictional requirements for valid arrest –
discretion – onus.
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from:
Free State High Court,
Bloemfontein (Hancke, Kruger and Van Zyl JJ sitting as court of
appeal from a Magistrates’ Court):
The following order is made:
The appeal is upheld.
The order of the court below is set aside and replaced
with an order in these terms:
The appeal of the Minister of Safety and Security is
upheld and the cross-appeal of the plaintiffs is dismissed.
The order of the Magistrates’ Court is amended
to read ‘absolution from the instance’.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
HARMS DP (NUGENT, LEWIS AND BOSIELO AND K PILLAY AJA
concurring)
INTRODUCTION
[1]
Section 40(1)
of the
Criminal Procedure Act 51 of
1977
provides for an arrest by a peace officer without a warrant of
arrest. The section appears to be clear but a number of high courts,
including the court below, have added a gloss to the section
purportedly based on the demands of the Bill of Rights. The Minister
of Safety and Security, the appellant, with leave of the court below,
argues that the gloss cannot be justified.
[2] The two plaintiffs (the present
respondents) were arrested by police officers (who are ‘peace
officers’)
1
without warrants of arrest. The first
plaintiff, Mr Sekhoto,
was arrested on 15 July 2002 on suspicion of a
contravention of s 2 of the Stock Theft Act 57 of 1959, which
provides that a person
who is found in possession of stock or
produce, in regard to which there is reasonable suspicion that it has
been stolen and is
unable to give a satisfactory account of such
possession, is guilty of an offence. The second plaintiff, Mr
Madonsela (also known
as Sibeko), was arrested the following day on a
count of stock theft.
[3] They were, until released on bail, detained for a
period of ten days and were subsequently charged together with
Sekhoto’s
father. The father was found guilty of stock theft
but the plaintiffs were discharged at the end of the state's case.
[4] The plaintiffs thereafter sent the required notices
of demand to the National Commissioner of Police in which they
claimed payment
of damages. Their complaint (as far is relevant for
this judgment) was that their arrests without a warrant were
‘unreasonable,
unlawful and intentional’. The demand was
not met and summons was issued in the Magistrates’ Court for
the district
of Vrede for damages on three grounds, namely unlawful
arrest, unlawful detention, and malicious prosecution. The claims in
relation
to detention and malicious prosecution were eventually
dismissed and do not feature in the appeal. The particulars of claim
in
respect of the unlawful arrest claim echoed the terms of the
letter of demand.
[5] The plea was based on a defence contained in s
40(1)(b) and (g) of the Act, which provide that a peace officer may
without warrant
arrest any person –
(b) whom he reasonably suspects of having committed an
offence referred to in Schedule 1; or
(g) who is reasonably suspected of being or having been
in unlawful possession of stock or produce as defined in any law
relating
to the theft of stock or produce.
[6] As was held in
Duncan
v Minister of Law and Order,
2
the jurisdictional facts for a s
40(1)(b) defence are that (i) the arrestor must be a
peace officer; (ii) the arrestor
must entertain a suspicion;
(iii) the suspicion must be that the suspect (the arrestee)
committed an offence referred to in
Schedule 1; and (iv) the
suspicion must rest on reasonable grounds. For purposes of para (g)
the suspicion must be that the arrestee
was or is in unlawful
possession of stock or produce as defined in any law relating to the
theft of stock or produce.
3
The jurisdictional facts for the
other paragraphs of s 40(1) differ in some respects but these are not
germane for present purposes.
[7] It is trite that the onus rests
on a defendant to justify an arrest. As Rabie CJ explained in
Minister of Law and
Order v Hurley
:
4
‘
An
arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems fair and just to require
that the
person who arrested or caused the arrest of another person should
bear the
onus
of
proving that his action was justified in law.’
[8] Presumably because the plaintiffs bore an onus in
respect of some of the issues in the case, especially in relation to
the other
claims, they testified first. It is apparent from the case
as presented by both parties that the only issue between them in
relation
to this cause of action concerned item (iv), namely whether
the peace officer had reasonable grounds for the arrest. The first
plaintiff’s evidence in chief, for instance, concluded with his
‘contention’ that he had been arrested without
any
reasonable grounds and the second plaintiff conceded at the
conclusion of his evidence that the police had good reason for
arresting him. The Minister’s attorney applied for absolution
from the instance at the end of the plaintiffs’ case
which the
learned magistrate correctly refused on the ground that absolution
was not available where the onus rested on a defendant.
[9] During the evidence of the peace officer, Mr van der
Watt, a question arose as to the relevance of the cross-examination
and
the attorney for the plaintiffs confirmed that the issue was
whether the police had grounds for their suspicion to arrest.
[10] The magistrate found that the Minister had
established the listed jurisdictional facts for a defence based on s
40(1)(b) and
(g). He nevertheless found in favour of the plaintiffs
in the light of the absence of evidence on behalf of the Minister of
another
jurisdictional fact, which was laid down by Bertelsmann J in
Louw v Minister of Safety and Security
2006 (2) SACR 178
(T)
at 186a – 187e, where the learned judge said the following:
‘
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 a crime
has indeed
been committed, this in itself does not justify an arrest forthwith.
An arrest, being as drastic an
invasion of personal liberty as it is, must still be justifiable
according to the demands of the
Bill of Rights. . . . [P]olice 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.’
[11] I shall refer to this as the fifth jurisdictional
fact which, if justified, would by its very nature be a requirement
for a
valid arrest under all the paragraphs of s 40(1). For ease of
reading I shall limit the discussion to a consideration of para (b)
only.
[12] The Minister
appealed to the full bench (which was constituted for purposes of the
appeal of three judges) of the Free State
High Court. The appeal was
dismissed.
5
The court confirmed the approach of
the magistrate by following the decision in
Louw
.
The full bench judgment, it may be mentioned, was in line with a
number of high court judgments that also followed the approach
in
Louw
.
6
The only dissenting voice was that of
Goldblatt J.
7
The Constitutional Court, in
Van
Niekerk
,
8
declined the invitation to decide the
conflict because a decision could not be justified by the facts of
the case before it.
[13] There is judicial, academic and,
according to media reports, public disquiet about the apparent abuse
by some peace officers
of the provisions of s 40(1) because they
arrest persons merely because they have the ‘right’ to do
so but where under
the circumstances an arrest is neither objectively
nor subjectively justifiable.
9
Paragraph (a), for instance, permits
a peace officer to arrest a person who commits
any
crime in his or her presence. This
may be used to arrest persons for petty crimes such as parking
offences, drinking in public,
and the like. There is in para (o) the
right to arrest any person who is reasonably suspected of having
failed to pay any fine,
which is used to justify road blocks and
arrest of persons who have failed to pay traffic fines. Some of the
provisions even hark
back to the days when gambling was a serious
sin, possession of an infinitesimal amount of dagga attracted a
minimum prison sentence
and Prohibition was racially based.
INTERPRETATION PRINCIPLES
[14] It is unclear whether the courts
below, in formulating the fifth jurisdictional fact, did so by direct
application of provisions
of the Bill of Rights, by developing the
common law or by way of interpretation of s 40(1). Accordingly, it is
appropriate to begin
with a reference to the statement of Chaskalson
P that the Constitution does not mean whatever we wish it to mean
and, furthermore,
that cases fall to be decided on a principled
basis.
10
[15] It is also necessary to be
reminded of the manner in which statutes must be interpreted in the
light of the Bill of Rights.
I do not apologise for setting this out
at length because it would appear that the different high courts have
failed to have regard
to these principles. Langa CJ, in
Hyundai,
11
after quoting s 39(2) of the
Constitution, which states, inter alia, that when interpreting
legislation a court must promote the
spirit, purport and objects of
the Bill of Rights, said that it means that all statutes must be
interpreted through the prism of
the Bill of Rights. He made the
following salient points relevant for present purposes:
The Constitution requires that
judicial officers read legislation, where possible, in ways which
give effect to its fundamental
values. Consistently with this, when
the constitutionality of legislation is in issue, they are under a
duty to examine the objects
and purport of an Act and to read the
provisions of the legislation, so far as is possible, in conformity
with the Constitution.
12
Judicial officers must prefer an interpretation of
legislation that falls within constitutional bounds over one that
does not,
provided it can be reasonably ascribed to the section.
Legislation, which is open to a meaning which would be
unconstitutional but is reasonably capable of being read ‘in
conformity
with the Constitution’, should be so read but the
interpretation may not be unduly strained.
There is a distinction between interpreting legislation
in a way which ‘promote[s] the spirit, purport and objects of
the
Bill of Rights’ and the process of reading words into or
severing them from a statutory provision under s 172(1)(b),
following
upon a declaration of constitutional invalidity under s
172(1)(a).
The first process, being an interpretative one, is
limited to what the text is reasonably capable of meaning. The
second can only
take place after the statutory provision,
notwithstanding the application of all legitimate interpretative
aids, is found to
be constitutionally invalid.
It follows that where a legislative provision is
reasonably capable of a meaning that places it within constitutional
bounds,
it should be preserved. Only if this is not possible should
one resort to the remedy of reading in or notional severance.
THE CONSTITUTION
[16] The Bill of Rights guarantees
the right of security and freedom of the person which includes the
right ‘not to be deprived
of freedom arbitrarily or without
just cause’ (s 12(1)(a)). This right, although previously not
entrenched, is not something
new in our law.
13
That is why, as stated at the outset
of this judgment, any deprivation of freedom has always been regarded
as prima facie unlawful
and required justification by the arresting
officer. This explains the rule that a plaintiff need only allege the
deprivation of
his freedom and require of the defendant to plead and
prove justification.
14
[17] In terms of s 35(1), an arrested person has the
right to be brought before court as soon as reasonably possible but
not later
than 48 hours after arrest (depending on court hours) and
to be released from detention subject to reasonable conditions if the
interests of justice so permit. The only other possibly relevant
provision appears to be s 33, which deals with just administrative
action, something I shall revert to in due course.
[18]
Our Bill of Rights is similar to, but not as detailed as, art 5.1 of
the European Convention on Human Rights
15
while s 12(1)(a) is
similar to s 9 of the Canadian Charter of Rights and Freedoms which
states that ‘everyone
has
the right not to be arbitrarily detained or imprisoned’.
FURTHER ANALYSIS OF SECTION 40(1)(b)
[19] 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 Act (s 38). The word ‘arrest’,
which translates into
Afrikaans as ‘in hegtenis neem’,
has in this and related contexts always required an intention to
bring the arrested
person to justice.
16
I shall revert to this issue.
[20] There are two relevant provisions dealing with
arrest. The first is s 40(1) which, as mentioned, authorises an
arrest without
a warrant. The other is s 43 which provides that a
magistrate may issue a warrant for the arrest of any person upon the
written
application of an attorney-general (now a director of public
prosecutions), a public prosecutor or a commissioned officer of
police.
[21] The four express jurisdictional facts for a defence
based on s 40(1)(b) have been set out earlier but to repeat the
salient
wording ‘a peace officer may without warrant arrest any
person whom he reasonably suspects of having committed an offence
referred to in Schedule 1’. Schedule 1 offences are serious
offences.
[22] With all due respect to the different high court
judgments referred to, applying all the interpretational skills at my
disposal
and taking the words of Langa CJ in
Hyundai
seriously, I am unable to find anything in the provision which leads
to the conclusion that there is somewhere in the words a hidden
fifth
jurisdictional fact. And because legislation overrides the common
law, one cannot change the meaning of a statute by developing
the
common law.
[23] It may be convenient to
interpose a further mention of s 43. As said, it deals with the issue
of a warrant for arrest upon
the written application of a director of
public prosecution, a public prosecutor or a commissioned officer of
police. The further
jurisdictional facts for the warrant are that the
application must set out (i) the offence alleged to have been
committed (which
need not be a Schedule 1 offence); (ii) that the
offence was committed within the area of jurisdiction of the
magistrate or that
the suspect is known or is on reasonable grounds
suspected to be within such area of jurisdiction; and (iii) that from
information
taken upon oath there is a reasonable suspicion that the
suspect has committed the alleged offence. If the fifth
jurisdictional
fact is part of s 40(1)(b) it must also by parity of
reasoning form part of s 43 but there is no way in which the wording
of the
section can be manipulated to achieve this result.
17
[24] That leads to the next question, which none of the
high courts has considered, namely whether s 40(1)(b), properly
interpreted,
is unconstitutional and, if so, whether reading in the
fifth jurisdictional fact can save it from unconstitutionality.
Absent a
finding of unconstitutionality they were not entitled to
read anything into a clear text.
[25] It could hardly be suggested
that an arrest under the circumstances set out in s 40(1)(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.
18
And
an
unlawful arrest will not necessarily give rise to an arbitrary
detention. The deprivation must, according to Canadian
jurisprudence, at least be capricious, despotic or unjustified.
19
[26] The provision is in terms
similar to the first part of art 5.1(c) of the quoted European
Convention. The same statutory provisions
are to be found in Canada
and live comfortably with its Human Rights Charter.
20
One finds the same position in the UK
where art 5 of the Convention forms part of its municipal law.
21
Lord Hope of Craighead noted that:
22
‘
It is
now commonplace for Parliament to enable powers which may interfere
with the liberty of the person to be exercised without
warrant where
the person who exercises these powers has reasonable grounds for
suspecting that the person against whom they are
to be exercised has
committed or is committing an offence. The protection of the subject
lies in the nature of the test which has
to be applied in order to
determine whether the requirement that there be reasonable grounds
for the suspicion is satisfied.’
[27] I do not wish to suggest that one or more of the
other paragraphs of s 40(1) may not be overbroad and require a
reading in
or down. The issue does not arise in this case.
DISCRETION
[28] Once the jurisdictional facts
for an arrest, whether in terms of any paragraph of s 40(1) or in
terms of s 43 are present,
a discretion arises. The question whether
there are any constraints on the exercise of discretionary powers is
essentially a matter
of construction of the empowering statute in a
manner that is consistent with the Constitution.
23
In other words, once the required
jurisdictional facts are present the discretion whether or not to
arrest arises. The officer,
it should be emphasised, is not obliged
to effect an arrest. This was made clear by this court in relation to
s 43 in
Groenewald v
Minister of Justice.
24
[29] As far as s 40(1)(b) is concerned, H J O van
Heerden JA said the following in
Duncan
(at 818H-J):
‘
If
the jurisdictional requirements are satisfied, the peace officer may
invoke the power conferred by the subsection, ie, he may
arrest the
suspect. In other words, he then has a discretion as to whether or
not to exercise that power (cf
Holgate-Mohammed
v
Duke
[1984]
1 All E R 1054
(HL) at 1057). No doubt the discretion must be
properly exercised. But the grounds on which the exercise of such a
discretion can
be questioned are narrowly circumscribed. Whether
every improper application of a discretion conferred by the
subsection will render
an arrest unlawful, need not be considered
because it does not arise in this case.’
[30]
He proceeded to say that an exercise of the discretion in question
will be clearly unlawful if the arrestor knowingly invokes
the power
to arrest for a purpose not contemplated by the legislator. This
brings me back to the fact that the decision to arrest
must be based
on the intention to bring the arrested person to justice. It is at
this juncture that most of the problems in the
past have arisen. Some
instances were listed in the judgment of the court below, namely an
arrest to frighten or harass the suspect,
for example, to appear
before mobile traffic courts with the intent to expedite the payment
of fines (
S
v Van Heerden
416g
–
h
)
;
to prove to colleagues that the arrestor is not a racist (
Le
Roux
para
41); to punish the plaintiff by means of arrest (
Louw
at
184j); or to force the arrestee to abandon the right to silence
(
Ramphal
para
11). To this can be added the case where the arrestor knew that the
state would not prosecute.
25
[31] The law in this regard has
always been clear.
26
Such an arrest is not bona fide but
in fraudem legis
because the arrestor has used a power
for an ulterior purpose. But a distinction must be drawn between the
object of the arrest
and the arrestor’s motive. This
distinction was drawn by Schreiner JA in
Tsose
27
and explained by G G Hoexter J in a
passage quoted with approval by this court in
Kraatz
at
507C-508F
.
Object is relevant while motive is
not.
28
It explains why the validity of an
arrest is not affected by the fact that the arrestor, in addition to
bringing the suspect before
court, wishes to interrogate or subject
him to an identification parade or blood tests in order to confirm,
strengthen or dispel
the suspicion.
29
It would appear that at least some of
the high court judgments under consideration have not kept this
distinction in mind.
[32] But this is not the only
relevant factor for exercising the discretion to arrest. The
reference in
Duncan
to
Holgate-Mohammed
is in this regard significant. This
judgment provided the basis for the three
Castorina
questions formulated
for determining the legality of an
arrest without a warrant by Woolf LJ:
30
(a) did the arresting officer suspect
that the person arrested was guilty of the offence; (b) were there
reasonable grounds for
that suspicion; and (c) did the officer
exercise his discretion to make the arrest in accordance with
Wednesbury
principles?
[33] The first two questions are in
substance the same as three of the four jurisdictional facts set out
in s 40(1)(b). Relevant
in the present context is the question
whether the discretion was exercised ‘in accordance with
Wednesbury
principles’, a reference to the
judgment of Greene MR in
Associated
Provincial Picture Houses Ltd v Wednesbury Corporation
[1947] EWCA Civ 1
;
[1947] 2 All ER 680
,
[1948] 1 KB 223.
[34] These principles are in
substance no different from those formulated by Innes ACJ in
Shidiack
v Union Government
:
31
‘
Now
it is settled law that where a matter is left to the discretion or
the determination of a public officer, and where his discretion
has
been
bona
fide
exercised
or his judgment
bona
fide
expressed,
the Court will not interfere with the result. Not being a judicial
functionary no appeal or review in the ordinary sense
would be; and
if he has duly and honestly applied himself to the question which has
been left to his discretion, it is impossible
for a Court of Law
either to make him change his mind or to substitute its conclusion
for his own. . . . There are circumstances
in which interference
would be possible and right. If for instance such an officer had
acted
mala
fide
or
from ulterior and improper motives, if he had not applied his mind to
the matter or exercised his discretion at all, or if he
had
disregarded the express provisions of a statute – in such cases
the Court might grant relief. But it would be unable
to interfere
with a due and honest exercise of discretion, even if it considered
the decision inequitable or wrong.’
[35] This court
has also accepted that these traditional common-law grounds of review
should be used to test the legality of the
exercise of discretion to
arrest.
32
[36] Because this dictum of Innes ACJ
pre-dates the Bill of Rights it required reconsideration and was
qualified when Chaskalson
P held that the Bill of Rights required
that the exercise of discretion must also be objectively rational. He
said the following:
33
‘
It
is a requirement of the rule of law that the exercise of public power
by the Executive and other functionaries should not be
arbitrary.
Decisions must be rationally related to the purpose for which the
power was given, otherwise they are in effect arbitrary
and
inconsistent with this requirement. It follows that in order to pass
constitutional scrutiny the exercise of public power by
the Executive
and other functionaries must, at least, comply with this requirement.
If it does not, it falls short of the standards
demanded by our
Constitution for such action.
The
question whether a decision is rationally related to the purpose for
which the power was given calls for an objective enquiry.
Otherwise a
decision that, viewed objectively, is in fact irrational, might pass
muster simply because the person who took it mistakenly
and in good
faith believed it to be rational. Such a conclusion would place form
above substance, and undermine an important constitutional
principle.’
[37] English courts also accept that,
in the light of the European Convention on Human Rights, the exercise
of discretion to arrest
must be rational.
34
In this regard Sir Thomas Bingham MR
accepted the submission of counsel, Mr David Pannick QC, as to the
test for irrationality which
was formulated in these terms:
35
‘
The
court may not interfere with the exercise of an administrative
discretion on substantive grounds save where the court is satisfied
that the decision is unreasonable in the sense that it is beyond the
range of responses open to a reasonable decision-maker. But
in
judging whether the decision-maker has exceeded this margin of
appreciation the human rights context is important. The more
substantial the interference with human rights, the more the court
will require by way of justification before it is satisfied
that the
decision is reasonable in the sense outlined above.’
[38] Although this approach tends to
suggest that the ‘executive discretion’ of a peace
officer is ‘administrative’
and may therefore be
regulated by s 33 of the Bill of Rights, which guarantees the right
to just administrative action, I am somewhat
loath to hold as much
simply because it could mean that the provisions of the
Promotion of
Administrative Justice Act 3 of 2000
would apply and this could imply
that if the discretion was ‘incorrectly’ exercised the
claimant would only in exceptional
circumstances be entitled to
‘compensation’ and not damages.
36
But even if this Act does not apply
it remains a general requirement that any discretion must be
exercised in good faith, rationally
and not arbitrarily.
37
[39] This would mean that
peace
officers are entitled to exercise their discretion as they see fit,
provided that they stay within the bounds of rationality.
The
standard is not breached because an officer exercises the discretion
in a manner other than that deemed optimal by the court.
A
number of choices may be open to him, 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.
38
[40] This does not tell one what
factors a peace officer must weigh up in exercising the discretion.
An official who has discretionary
powers must, as alluded to earlier,
naturally exercise them within the limits of the authorising statute
read in the light of the
Bill of Rights.
39
Where the statute is silent on how
they are to be exercised that must necessarily be deduced by
inference in accordance with the
ordinary rules of construction,
consonant with the Constitution, in the manner described by Langa CJ
in
Hyundai.
[41] In this case the legislature has not expressed
itself on the manner in which the discretion to arrest is to be
exercised and
that must be discovered by inference. And in construing
the statute for that purpose the section cannot be viewed in
isolation,
as the court below appears to have done.
[42] While it is clearly established that the power to
arrest may be exercised only for the purpose of bringing the suspect
to justice
the arrest is only one step in that process. Once an
arrest has been effected the peace officer must bring the arrestee
before
a court as soon as reasonably possible and at least within 48
hours (depending on court hours). Once that has been done the
authority
to detain that is inherent in the power to arrest has been
exhausted. The authority to detain the suspect further is then within
the discretion of the court.
[43] The discretion of a court to order the release or
further detention of the suspect is subject to wide-ranging ─
and in
some cases stringent ─ statutory directions. Indeed, in
some cases the suspect must be detained pending his trial, in the
absence of special circumstances. I need not elaborate for present
purposes save to mention that the Act requires a judicial evaluation
to determine whether it is in the interests of justice to grant bail,
that in some instances a special onus rests on a suspect
before bail
may be granted and the accused has in any event a duty to disclose
certain facts, including prior convictions, to the
court. It is
sufficient to say that if a peace officer were to be permitted to
arrest only once he is satisfied that the suspect
might not otherwise
attend the trial then that statutory structure would be entirely
frustrated. To suggest that such a constraint
upon the power to
arrest is to be found in the statute by inference is untenable.
[44] While the purpose of arrest is
to bring the suspect to trial the arrestor has a limited role in that
process. He or she is
not called upon to determine whether the
suspect ought to be detained pending a trial. That is the role of the
court (or in some
cases a senior officer).
40
The purpose of the arrest is no more
than to bring the suspect before the court (or the senior officer) so
as to enable that role
to be performed. It seems to me to follow that
the enquiry to be made by the peace officer is not how best to bring
the suspect
to trial: the enquiry is only whether the case is one in
which that decision ought properly to be made by a court (or the
senior
officer). Whether his decision on that question is rational
naturally depends upon the particular facts but it is clear that in
cases of serious crime – and those listed in Schedule 1 are
serious, not only because the Legislature thought so –
a peace
officer could seldom be criticized for arresting a suspect for that
purpose. On the other hand there will be cases, particularly
where
the suspected offence is relatively trivial, where the circumstances
are such that it would clearly be irrational to arrest.
This case
does not call for consideration of what those various circumstances
might be. 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.
ONUS
[45]
If
the proper exercise of discretion is a jurisdictional fact for arrest
it would follow ineluctably that the arrestor has to bear
the onus of
alleging and proving that the discretion was properly exercised.
Having found that the approach in
Louw
conflated
jurisdictional facts with discretion
41
it is
necessary to consider the question of onus afresh. In this regard I
shall first consider the law as it was prior to the adoption
of a
Bill of Rights and then consider whether the position since its
adoption should be changed.
[46] In
Groenewald
(at 884) an arrest pursuant to
a warrant for arrest was in issue. The plaintiff assumed that it was
for the defendant to prove that
the warrant had not been issued
in
fraudem legis
and was therefore content to rely, as in this case,
on his evidence that he had not committed the crime. This court
rejected the
submission and held that once the jurisdictional facts
have been established it is for the plaintiff to prove that the
discretion
was exercised in an improper manner. This approach was
adopted in
Duncan
(at 819B-D) as being applicable to attacks
on the exercise of a discretion under s 40(1)(b).
[47]
All this and more has already been stated by Hefer JA in
Dempsey.
42
I do
recognize that the context was somewhat different and that he was
dealing with motion proceedings and not trials.
[48] As to the general
principle, he said:
‘
Once
the jurisdictional fact is proved by showing that the functionary in
fact formed the required opinion, the arrest is brought
within the
ambit of the enabling legislation, and is thus justified. And if it
is alleged that the opinion was
improperly
formed,
it is for the party who makes the allegation to prove it. There are
in such a case two separate and distinct issues, each
having its own
onus
(
Pillay
v Krishna and Another
1946
A D 946
at p 953). The first is whether the opinion was
actually
formed;
the second, which only arises if the
onus
on
the first has been discharged or if it is admitted that the opinion
was actually formed, is whether it was
properly
formed.’
[49] Does the Constitution require
another approach? I think not.
43
A party who
alleges that a constitutional right has been infringed bears the
onus. The general rule is also that a party who attacks
the exercise
of discretion where the jurisdictional facts are present bears the
onus of proof. This is the position whether or
not the right to
freedom is compromised. For instance, someone who wishes to attack an
adverse parole decision bears the onus of
showing that the exercise
of discretion was unlawful. The same would apply when the refusal of
a presidential pardon is in issue.
[50]
Onus in the context of civil law depends on considerations of policy,
practice and fairness and if a rule relating to onus
is rationally
based it is difficult to appreciate why it should be
unconstitutional.
44
Hefer
JA also raised the issue of litigation fairness and sensibility. It
cannot be expected of a defendant, he said, to deal effectively
in a
plea or in evidence with unsubstantiated averments of
mala
fides
and
the like, without the specific facts on which they are based, being
stated. So much the more can it not be expected of a defendant
to
deal effectively with a claim (as in this case) in which
no
averment
is made, save a general one that the arrest was ‘unreasonable’.
Were it otherwise, the defendant would in effect
be compelled to
cover the whole field of every conceivable ground for review, in the
knowledge that, should he fail to do so, a
finding that the
onus
has
not been discharged, may ensue. Such a state of affairs, said Hefer
JA, is quite untenable.
[51]
The correctness of his views in this regard is illustrated by the
judgment of the court below (para 35) where the court listed
matters
it thought the arrestor should have given attention to without his
having had the opportunity to say whether or not he
had done so. This
amounts to litigation by ambush, something recently decried by this
court.
45
[52]
One can test this with reference to the rules of pleading. A
defendant who wishes to rely on the s 40(1)(b) defence traditionally
had to plead the four jurisdictional facts in order to present a plea
that is not excipiable. If the fifth fact is necessary for
a defence
it has to be pleaded. This requires that the facts on which the
defence is based must be set out. If regard is had to
para 28 of the
judgment of the court below it would at least be necessary to allege
and prove that the arrestor appreciated that
he had a discretion
whether to arrest without a warrant or not; that he considered and
applied that discretion; that he considered
other means of bringing
the suspect before court; that he investigated explanations offered
by the suspect; and that there were
grounds for infringing upon the
constitutional rights because the suspect presented a danger to
society, might have absconded,
could have harmed himself or others,
or was not able and keen to disprove the allegations. But that might
not be enough because
a court of first instance or on appeal may
always be able to think of another missing factor, such as the
possible sentence that
would be imposed.
46
[53] English
courts accept that a plaintiff bears the onus in relation to
the
third
Castorina
question
namely
whether the
discretion was exercised ‘in accordance with
Wednesbury
principles’. The question of
onus was neatly summed up by Latham LJ in
Cumming
in these words:
47
‘
It is
accepted, as I have already indicated, that in determining whether or
not the police have acted within the powers conferred
by this
sub-section, the three
Castorina
questions modified if necessary by the European Convention on Human
Rights are the appropriate questions for the court to determine.
It
is also accepted that it is for the police to prove on the balance of
probabilities that the arresting officer suspected that
the person
arrested was guilty of the offence, and that there were reasonable
grounds for that suspicion. It is also accepted that
if those two
questions are answered affirmatively, the burden is on the arrested
person to establish that the discretion was unlawfully
exercised.’
This view as to
onus is also supported by the approach of Canadian courts.
48
TSOSE
REVISITED
[54] The present debate arose in
the high courts by reason of the last sentence (which I italicise
below) of a dictum by Schreiner
JA
in
Tsose
(at 17G–H)
which reads:
'An
arrest is, of course, in general a harsher method of initiating a
prosecution than citation by way of summons but if the circumstances
exist which make it lawful under a statutory provision to arrest a
person as a means of bringing him to court, such an arrest is
not
unlawful even if it is made because the arrestor believes that arrest
will be more harassing than summons. For just as the
best motive will
not cure an otherwise illegal arrest so the worst motive will not
render an otherwise legal arrest illegal. .
. .
What
I have said must not be understood as conveying approval of the use
of arrest where there is no urgency and the person to be
charged has
a fixed and known address; in such cases it is generally desirable
that a summons should be used.
But
there is no rule of law that requires the milder method of bringing a
person into court to be used whenever it would be equally
effective.
'
[55] De Vos J
49
said
obiter that the statement could not be reconciled with the Bill of
Rights and Bertelsmann J followed her. Neither referred
to the cases
discussed above as to the nature of the discretion or the onus and,
accordingly, did not state the pre-constitutional
jurisprudence
correctly.
[56] Schreiner
JA dealt with the contention relating to the arrestor’s motive
in the light of the findings of the court of
first instance and the
court of second instance
50
under a
differently worded statute.
51
He had
already found that an arrest without the intention to bring the
suspect to justice would have been unlawful.
52
And as
indicated in
Duncan
in some
detail, the true import of Schreiner JA’s reasoning was
misconceived because his attention was focused on the facts
before
court and he did not purport to codify the law.
53
However,
it is not necessary to say more about the dictum because, in
isolation, it did not reflect the pre-constitutional law in
full and
to the extent that it has to be it has now again been qualified.
CONCLUSION
[57] The case can be disposed of on a simple basis,
namely, that the proper exercise of Van der Watt’s discretion
was never
an issue between the parties. The plaintiffs, who had to
raise it either in their summons or in a replication, failed to do
so.
The issue was also not ventilated during the hearing. This means
that since the magistrate had found that the four jurisdictional
facts required for a defence under s 40(1)(b) were established by the
appellant (a finding upheld by the court below) their claims
had to
be dismissed.
[58] Mr Maleka SC with Ms Bester, for the appellant, did
not ask for costs, also not in the courts below. The court wishes to
express
its appreciation for the contribution of Ms Wright who, since
the plaintiffs were not represented on appeal, argued their case as
amicus curiae in the best traditions of the bar.
[59] The following order is made:
The appeal is upheld.
The order of the court below is set aside and replaced
with an order in these terms:
The appeal of the Minister of Safety and Security is
upheld and the cross-appeal of the plaintiffs is dismissed.
The order of the Magistrates’ Court is amended to
read ‘absolution from the instance’.
_____________________
L T C Harms
Deputy President
APPEARANCES
APPELLANT/S I V Maleka SC (with him A Bester)
Instructed by State Attorneys, Bloemfontein
RESPONDENT/S: G J M Wright
Instructed by: Fantisi & Co, Vanderbijlpark
Lovius Block Attorneys, Bloemfontein
1
Under
s 1 of the Act ‘p
eace officers’
include magistrates, justices, police officials, certain
correctional officials and persons declared under
s 334 (1) to be
one.
2
Duncan
v Minister of Law and Order
1986 (2)
SA 805
(A) at 818G-H.
3
There
is a related provision concerning the right to arrest in s 9 of the
Stock Theft Act but it will not be necessary to consider
it
separately.
4
Minister
of Law and Order v Hurley
1986 (3) SA
568
(A) at 589E-F.
5
R
eported
as
Minister of Safety and Security v
Sekhoto
2010 (1) SACR 388
(FB).
6
Gellman
v Minister of Safety and Security
[2007] ZAGPHC 269
;
2008
(1) SACR 446
(W);
Le
Roux v Minister of Safety and Security
2009
(2) SACR 252,
2009 (4) SA 491
(KZP);
Ramphal
v Minister of Safety and Security
2009
(1) SACR 211 (E); MVU v Minister of Safety and Security 2009 (2)
SACR 291 (GSJ).
7
Charles
v Minister of Safety and Security
2007 (2) SACR 137
(W).
8
Minister
of Safety and Security v Van Niekerk
2008
(1) SACR 56,
2007 (10) BCLR 1102
(CC).
9
Clive
Plasket 'Controlling the discretion to arrest without a warrant
through the Constitution' (1998) 11
Suid-Afrikaanse
Tydskrif vir Strafregspleging
173.
Compare
S v Van
Heerden
2002
(1) SACR 409 (T).
10
Mistry
v Interim Medical and Dental Council of SA
1998 (4) SA 1127
(CC)
para 3.
11
Investigating
Directorate: Serious Economic Offences v Hyundai Motor Distributors
(Pty) Ltd
[2000] ZACC 12
;
2001 (1) SA 545
,
2000 (10) BCLR 1079
(CC) paras 21-26.
12
The
principle is not new having been recognised in the Transvaal
Republic in
The Argus Printing and Publishing Co Ltd v The
State
(1897) 4 Off Rep 124.
13
Zealand
v Minister of Justice and Constitutional Development
[2008] ZACC 3
;
2008
(4) SA 458
(CC) paras 24-25. See also
Minister
of Safety and Security v Seymour
[2007]
1 All SA 558
(SCA) para 14
.
14
Minister
van Wet en Orde v Matshoba
1990 (1) SA 280
(A) per EM Grosskopf
JA.
15
‘
Everyone
has the right to liberty and security of person. No one shall be
deprived of his liberty save in the following cases
and in
accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction
by a competent court;
(b) the lawful arrest or detention of a person for
non-compliance with the lawful order of a court or in order to
secure the fulfilment
of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected
for the purpose of bringing him before the competent legal authority
of
reasonable suspicion of having committed and offence or when it
is reasonably considered necessary to prevent his committing an
offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the
purpose of educational supervision or his lawful detention for the
purpose
of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention
of the spreading of infectious diseases, of persons of unsound mind,
alcoholics
or drug addicts, or vagrants;
(f)
the lawful arrest or detention of a person to prevent his effecting
an unauthorized entry into the country or of a person
against whom
action is being taken with a view to deportation or extradition.’
16
Ex
parte Minister of Safety and Security: In re S v Walters
[2002] ZACC 6
;
2002
(4) SA 613
(CC) paras 49-50 and t
he authorities
referred to in
Macu v Du Toit
1983 (4) SA 629
(A) at 645. Compare
Lawless
v Ireland (No. 3)
[1961] ECHR 2.
17
I
can, accordingly, not see how, as stated in
Gellman
para 87
that ‘
the more conservative procedure of
approaching a magistrate or justice of the peace to issue a warrant’
could make any difference.
A peace officer who is not a police
officer is in any event not entitled to apply for a warrant of
arrest.
18
R
v Latimer
[1997] 1 SCR 217
para 22;
R v
Mann
[2004] 3 SCR 59
;
2004 SCC 52
para 20.
19
See
the authorities quoted in
Regina v Orr
2008 BCPC 367
and
Regina v Dupuis
2003 BCSC 1846
para 17.
20
Criminal
Code RSC 1970 s 495(1)(a): 'A peace officer may arrest without
warrant (a) a person who has committed an indictable offence
or who,
on reasonable grounds, he believes has committed or is about to
commit an indictable offence.’
21
Human
Rights Act 1998 s 1.
See further
Brogan
v United Kingdom
[1988] ECHR 24
and
Brannigan and McBride v United Kingdom
[1993] ECHR 21.
22
In
O'Hara v Chief Constable of the RUC
[1996] UKHL 6
,
[1997] AC
286
,
[1997] 1 All ER 129.
23
Affordable
Medicines Trust v Minister of Health
2006
(3) SA 247,
[2005] ZACC 3
;
2005 (6) BCLR 529
(CC) para 36.
24
Groenewald
v Minister van Justisie
1973 (3) SA 877
(A) at 883G-884B.
25
Sex
Worker Education and Task Force v Minister of Safety and Security
2009 (2) SACR 417
(WCC).
26
Minister
van die SA Polisie v Kraatz
1973 (3) SA 490
(A).
27
Tsose
v Minister of Justice
1951 (3) SA 10
(A).
28
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
,
2009 (1)
SACR 361
,
2009 (4) BCLR 393
(SCA)
paras 37-38.
29
Duncan
at
818B-C. See also
R
v Storrey
(1990) 1 SCR (Supreme Court
of Canada) and compare
Williams v R
[1986] HCA 88
,
(1986) 161 CLR 278
(High Court of Australia).
30
Castorina
v Chief Constable of Surrey
[1996] LG
Rev Rep 241 249 quoted for instance,
Cumming
& Ors v Chief Constable of Northumbria Police
[2003]
EWCA Civ 1844
and
Commissioner of Police of the Metropolis
v Raissi
[2008] EWCA Civ 1237
. See also
Lyons
v Chief Constable of West Yorkshire
[1997]
EWCA Civ 1520.
31
Shidiack
v Union Government (Minister of the Interior)
1912 AD 642
at
651-652.
32
Groenewald
at 883H-884B. So, too,
Ulde v Minister of Home Affairs
2009 (4) SA 522
(SCA) para 7.
33
Pharmaceutical
Manufacturers Association of SA: In Re Ex Parte Application of
President of the RSA
[2000] ZACC 1
;
2000 (2) SA 674
,
2000 (3) BCLR 241
(CC)
paras 85-86.
34
See
Cumming v Chief Constable of Northumbria
Police
[2003] EWCA Civ 1844.
35
In
R v Ministry of Defence; Ex parte Smith
[1995] EWCA Civ 22
,
[1996] 1 All ER 257
,
[1996] QB 517.
36
Greys
Marine Hout Bay (Pty) Ltd v Minister of Public Works
[2005] ZASCA
43
;
[2005] 3 All SA 33
(SCA)
dealt with the problems with the definition of ‘administrative
action’. See also
Pharmaceutical
Manufacturers Association of SA
.
37
Masetlha
v President of the RSA
[2007] ZACC 20
;
2008 (1) SA 566
(CC) para 23.
38
Hill
v Hamilton Wentworth Regional Police Services Board
[2007] 3 SCR 129
,
2007 SCC 41
para 73 adapted for
present purposes. Compare
Al Fayed v Commissioner of
Police of the Metropolis
[2004] EWCA Civ 1579
para 82.
39
Paul
v Humberside Police
[2004] EWCA Civ 308
para 30: ‘although
Article 5 of the European Convention of Human Rights does not
require the court to evaluate the exercise
of discretion in any
different way as it evaluates the exercise of any other executive
discretion, it must do so in the light
of the important right to
liberty which is at stake.’
40
A
police officer of higher rank may release a suspect on bail but even
then only under limited circumstances: theft, for instance,
is
excluded from his powers (s 59). It appears to be incongruous for to
expect a peace officer to make a fully informed decision
on whether
or not to arrest in a case like the present where a superior officer
may not even release the person, if arrested,
on bail.
41
Compare
Pharmaceutical Manufacturers Association of SA
paras
79-81.
42
Minister
of Law and Order v Dempsey
1988 (3) SA
19
(A) at 37B-39F
.
43
Ulde
v Minister of Home Affairs
(para 8)
did not decide the issue of onus.
44
Prinsloo
v Van der Linde
1997 (3) SA 1012
(CC)
paras 37-38.
45
Minister
of Safety and Security v Slabbert
[2009] ZASCA 163.
46
Held
in
MVU
para 12 to be a requirement.
47
Paragraph
26.
See also
Al Fayed
(at para 83)
which is to the same effect.
48
Collins
v Brantford Police Services
2001 CanLII 4190 (ON CA).
There ma y
be a statutory basis for this but it has not to my knowledge been
held to be unconstitutional. The same appears to
apply to Australia:
Trobridge v Hardy
[1955] HCA 68
,
(1955) 94 CLR 147.
49
Ralekwa
v Minister of Safety and Security
2004
(1) SACR 131
,
2004
(2) SA 342
(T).
50
Tsose
v Minister of Justice
1949 (4) SA 141
(W) and
Minister of Justice v Tsose
1950 (3) SA 88
(T).
51
Compare
Duncan
817I-818F.
52
Compare
Duncan
817C-H.
53
At
818E-819E.