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[2022] ZAECMKHC 4
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Mcewan v Minister of Police (CA170/2021) [2022] ZAECMKHC 4 (19 April 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO. CA170/2021
In
the matter between:
ROGER
MCEWAN
And
THE
MINISTER OF POLICE
JUDGMENT
GQAMANA
J:
[1] This
appeal is against the judgment of the Regional Magistrate, Ms Reddy,
wherein she granted
a judgment in favour of the defendant (the
respondent herein) with costs. As a short background, the
appellant (the plaintiff
in the court a quo) sued the respondent, the
Minister of Police, for damages arising out of an alleged unlawful
arrest and detention.
The appellant was unsuccessful in his quest to
hold the respondent vicariously liable for the actions of the police
that arrested
and detained him. Dissatisfied with the aforesaid
judgment, the appellant approached this court.
[2] There
are sixty three grounds of appeal as set out in the notice of appeal,
but trimmed
to the bone, the real herein issues are;
(a)
the lawfulness of the arrest in that, whether the arresting officer
entertained a reasonable suspicion that the appellant committed
a
Schedule 1 offence;
(b) the detention of
the appellant beyond the 48 hours period;
(c) the lawfulness
of the detention, and
(d)
the costs awarded by the Magistrate in favour of the respondent.
[3] Before
I consider these issues, it is necessary to sketch out the
appellant’s
claim as set out in his pleadings. The
appellant’s claim stems from his arrest and ensuing detention
by the police.
It is common cause that the appellant was
arrested by the police without a warrant in the early hours (shortly
after midnight)
[1]
on Friday, 5
October 2018. He was thereafter detained at Gelvandale police
station. He appeared at court on Monday,
8 October 2018.
His case was then remanded for the following day. On 9 October
2018, it was further postponed by the
presiding officer for “
SAP
69’s + profiles
.”
[2]
Thereafter on 16 October 2018, his case was withdrawn by the
Prosecutor.
[4] On
the heels of the withdrawal of the criminal charges against him, a
notice in terms of
s 3 of Act 40 of 2002 was served on both the
National and Provincial Commissioners.
[3]
Subsequent thereto summons was issued on 5 December 2018. In
the particulars of claim, the appellant pleaded that the
arrest and
ensuing detention were unlawful and consequently he claimed damages
in the total sum of
R350
000.00
.
[5] The
respondent resisted liability and relied on the provisions of s 40
(1)(b) of the
Criminal Procedure Act, 51 of 1977 (“the CPA”)
as the justification for the arrest. It was furthermore pleaded
by the respondent that the object of arresting the appellant was to
investigate the matter and to bring him before a court of law.
[4]
[6] Because
the arrest and ensuing detention were admitted, the onus was on the
respondent
to justify the lawfulness of the arrest and detention.
[5]
However, in respect of the claim for loss of income, the plaintiff
retained the onus and the duty to begin.
[7] It
is well-established that the jurisdictional facts for a section
40(1)(b) defence
are that; (i) the arrestor must be a peace officer,
(ii) he/she must entertain suspicion, (iii) the suspicion must be
that the
arrestee committed a Schedule 1 offence, and (iv) the
suspicion must rest on reasonable grounds.
[6]
The onus is upon the arresting officer to establish these
jurisdictional facts. The question of discretion only arises
once the jurisdictional facts have been established.
[8] The
first three jurisdictional facts are not in issue herein. The
appellant’s
main contention is that the arresting officer’s
suspicion was not based on reasonable grounds.
[9] Mr
Mackenzie
on
behalf of the appellant argued that, even if the information at the
disposal of the police was sufficient to effect the arrest,
when the
appellant gave them an exculpatory statement, the reasonableness of
their suspicion ceased then and there, and accordingly
there was an
obligation on the arresting officer to investigate it. For that
proposition, Mr
Mackenzie
relied
upon the judgment by the Supreme Court of Appeal in
Brits
v Minister of Police & Another
(759/2020)
[2021] ZASCA 161
(23 November 2021). That judgment
is of no assistance to the appellant herein, because it is
distinguishable on the facts.
In that matter the SCA concluded
that the High Court erred on the facts and in law in that, there was
no evidence justifying the
findings that,
prima
facie
the appellant exercised constructive control of the goods suspected
to be stolen through his employee, and further that, its reliance
on
the judgment in
S
v Wilson
1962 (2) SA 619
(A) was misplaced. It further held that the
arresting officer had made up his mind to arrest the appellant long
before his
arrival and did not apply his mind to the appellant’s
explanation.
In
the instant matter, the police officer that physically effected the
arrest denied that there was any exculpatory statement made
by the
appellant at the time of the arrest. Furthermore, even at the
police station when the warning statement was taken
from the
appellant, he declined to make a statement.
[10] As
a point of departure, the arresting officer does not have to be
convinced that there is in
fact evidence proving the guilt of the
arrested person beyond reasonable doubt. The question of
whether the arresting officer
entertained a reasonable suspicion has
to be approached in the matter postulated by
Jones
J in
Mabona
and another v Minister of Law and Order Others,
[7]
and
that is
:
“
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 plaintiff’s ‘were guilty
of conspiracy to commit robbery or possession
of stolen property
knowing it to have been stolen?
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, something which
otherwise would have
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 no certainty. However, the suspicion
must be
based upon solid grounds. Otherwise, it will be flighty or
arbitrary and not a reasonable suspicion
.”
[11] Although
her judgment is not well drafted, the trial Magistrate holistically
considered all the
evidence without losing sight of where the onus
rests. From the appeal record, it is evident that the police
testified that
there was a sworn statement made by the complaint
about the rape incident and the appellant was implicated therein as
the perpetrator.
The appellant was well known by the
complainant. The medical report (form J88) also did not exclude
rape/sexual assault.
Further it is evident from the content of
the complainant’s statement, that there were no other person(s)
that witnessed
the rape incident. There was also the first
report statement. The object of arresting the appellant was to
bring him
before court to be dealt with in accordance with justice.
When the police took his warning statement, the appellant refused
to
make a statement and said that he will make the statement in court.
Based on the aforesaid evidence, the Magistrate was
accordingly
satisfied that the arresting officer exercised a reasonable
suspicion. I have indicated in paragraph 8 above
that the
police denied that the appellant gave exculpatory statement that
required to be investigated or checked before arresting
him.
[12] Having
regard to the totality of the evidence at the disposal of the trial
magistrate, her findings
that the arresting officer entertained a
reasonable suspicion were correct. The information at the
disposal of the arresting
officer was sufficient to effect the
arrest. The information does not have to be of such a nature
that it proves the guilt
of the arrested person. It is
sufficient if it is based on reasonable suspicion and not certainty.
The appellant was
unable and not keen to rebut the rape allegations
against him. The object of arresting the appellant was to bring
him before
court. Accordingly Mr
Mackenzie
’s
submissions that the magistrate erred on her findings in respect of
this jurisdictional fact on this aspect have no merits.
[13] With
regard to the exercise of the discretion by the arrestor, the onus
was upon the appellant,
even though the arrest itself comprises a
person’s right to freedom. In
Minister
of Safety and Security v Sekhoto and Another
,
[8]
Harms
DP
at para 49 stated that:
“
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.
”
[14] In
the particulars of claim (at para 13.4) a bold allegation was made
that the arresting officer
failed to exercise any discretion at all,
alternatively, failed to exercise his discretion in a rational
manner.
[9]
There was no
evidence led by the appellant to show either that there was no
urgency to use the arrest method to bring him
before court or that
other milder methods of bringing him to court would have been equally
effective. Based on the evidence
and pleadings herein, the
exercise of discretion by the arresting officer to use the arrest
method to bring the appellant to court
cannot be faulted.
[15] I
now proceed to consider the issue of detention. Mr
Mackenzie
argued that the appellant should have been brought before court on
Friday, 5 October 2018, that is, the date of his arrest.
Section 50 (1)(c) and (d)(i) of the CPA reads:
“
(c)
Subject
to paragraph (d), if such an arrested person is not released by
reason that–
(i)
no
charge is to be brought against him or her; or
(ii)
bail
is not granted to him or her in terms of section 59 or 59A, he or she
shall be brought before a lower court as soon as reasonable
possible,
but not later than 48 hours after the arrest.
(d)
If
the period of 48 hours expires–
(i)
Outside
ordinary court hours or on a day which is not an ordinary court day,
the accused shall be brought before a lower court not
later than the
end of the first court day…”
[16] An
arrested person must be brought before a lower court as soon as
reasonably possible but not later
than 48 hours after his arrest.
However, what is reasonably possible depends on the facts of each
case. It is common
cause that the appellant was arrested in the
early hours (at 00h15) on Friday, 5 October 2018.
[10]
The bail information form and other administrative procedures were
completed on Saturday, 6 October 2018 by the Investigating
Officer.
The Investigating Officer died before the trial and was unavailable
to testify and provide explanation on why the
appellant was not
brought to court on the date of his arrest. However the
objective evidence presented before the trial court
shows that on the
first appearance, the appellant’s criminal profiles were still
outstanding. There were allegations
that such profiles were
readily available or that the police were remiss in their duties by
not ensuring that the profiles were
available earlier.
[17] In
advancing his submission on this point Mr
Mackenzie
placed reliance on the judgment in
Minister
of Safety and Security v Faizel Jacobs.
[11]
The
facts in
Jacobs
were as follows: the respondent was arrested on Thursday, 19 February
2009 at 21h00 for a robbery incident that took place in October
2008,
i.e. a period of approximately four months. The investigating
officer failed to take him to court on Friday because
he was busy.
He was only taken to court on Monday, 23 February 2009. He was
kept in the court cells and was not brought
before court because the
case docket was left at the police station. He was released in
the afternoon at 16h00 without even
appearing in court. The
court found both explanation inexcusable and that nothing prevented
the investigating officer to
take the respondent to court on Friday
within the 48-hours period.
[18] The
facts in this matter are completely distinguishable. The
evidence as pointed out in
the preceding paragraph above, shows that
there was an investigation going on and the appellant’s
criminal profiles were
still outstanding. During the hearing of
the appeal, we pointed to Mr Mckenzie these objective facts.
Despite that,
in his desperation to resuscitate his already demised
submission, Mr
Mckenzie
sought to persuade us that, although
the criminal profiles were essential and vital to the issue of bail,
the investigating officer
could have obtained them sooner in a
shorter period of time, because the appellant’s identification
document was in the possession
of the police. Such submission
was superficially attractive but not borne out by the case pleaded on
behalf of the appellant.
Without the allegations and evidence
supporting such submission it has no merit.
[19] If
an arrested person is not released as contemplated in sub-section
(1)(c) and it is not reasonably
possible to bring him to court within
48 hours, he must be brought before court by no later than the end of
the first court day,
if the period of 48 hours expires outside the
ordinary court hours.
[12]
The appellant was brought to court on Monday, 8 October 2008 and that
was within the time period stipulated in sub-s (1)(d)(i).
[20] Mr
Mackenzie
also argued that the ensuing further detention was unlawful. We
pointed out once again to him that the pleadings lack specific
averments setting out the grounds upon which the detention was
contended to be unlawful.
[21] In
Sandi
v Minister of Safety and Security and another,
[13]
Eksteen
J at para [6] said
the following:
“
The
grounds upon which it is contended that the detention is unlawful
must therefore be pleaded in order to alert the defendant
to the
issue in respect of which the defendant bears the onus.”
[22] At
the hearing of the appeal, we invited Mr
Mckenzie
to
direct us to the record the date at which, and the circumstances upon
which he contends further the detention of the appellant
became
unlawful. He was unable to do so. If the arrest is
lawful, the ensuing detention is
prima
facie
lawful until the arrested person is brought before a court.
[14]
The facts upon which the aggrieved person contends that the detention
was unlawful must be specifically pleaded. None
were pleaded
herein nor was evidence given to support the contention that the
detention was unlawful. Therefore, there was
no misdirection on
the part of the Magistrate in her findings that the entire detention
was lawful.
[23] On
the issue of costs awarded by the trial Magistrate, it is well
established law that the award of
costs falls wholly within the
discretion of the court of first instance and the court of appeal
will not interfere with a costs
order made by the trial court unless
the latter failed to exercise a proper and judicial discretion.
[15]
[24] The
power of the appeal court to interfere with a costs order is limited
to cases of vitiation
by misdirection or irregularity or absence of
grounds on which a court, acting reasonably could have made such an
order.
[16]
Whether the
appeal court would not have awarded the same order is not a ground
for interference with the costs order of the
trial court.
[17]
[25] On
the facts herein it cannot be said that the trial Magistrate failed
to exercise a proper and
judicial discretion in awarding the costs
against the appellant. The respondent was fully successful in
resisting the appellant’s
claim in the trial court, and the
Magistrate exercised her discretion and awarded the costs in favour
of the respondent including
counsel’s fees.
[26] With
regard to the costs of this appeal there are no reasons to depart
from the general rule that
the costs follow the result. The
respondent is accordingly entitled to his costs of the appeal.
[27] In
the circumstances the following order is issued:
1.
The appeal is dismissed with costs.
N GQAMANA
JUDGE OF THE HIGH
COURT
I agree
D VAN ZYL
DEPUTY JUDGE
PRESIDENT OF THE HIGH COURT
APPEARANCES:
Attorney
for the Appellant
:
Mr P
Mckenzie
Instructed
by
: C/o
Gold and Stone Inc. Attorneys
Grahamstown
Counsel for the
Respondent
:
Adv
M Pango
Instructed
by
: State
Attorneys
Gqeberha
Date
heard
: 04
February 2022
Date judgment
delivered
: 19
April 2022
[1]
Record Vol 1, p43,
para 1.15.
[2]
Vol II, p120.
[3]
Vol 1, pp 14, 26 both letters
are dated 31 October 2018.
[4]
Vol 1, pp 33–34,
para 3.3.
[5]
Minister of Law and
Order & others v Hurley and another
1986 (3) SA 568
(A) at 589 E–F and
Zealand
v Minister of Justice and Constitutional Development and another
2008 (4) SA 458 (CC).
[6]
Duncan v Minister of
Law and Order
1986
(2) SA 805
(A) at 818G–H
[7]
1988 (2) SA 654
(SE) at
658 E–H.
[8]
2011 (1) SACR 315 (SCA).
[9]
Vol 1, p 11, para 13.4.
[10]
Record Vol 1, p 45 para
1.15.
[11]
Unreported judgment, ECHC
(Grahamstown) Case No: CA07/2011, 15 December 2011.
[12]
See section 50(1)(d)(i) of the
CPA.
[13]
Unreported judgment, ECG Case
No: 272/2012 (13 September 2017).
[14]
Section 39 of the CPA.
[15]
Beinash v Wixley,
[1997] ZASCA 32
;
1997
(3) SA 721
(SCA) at 739 G–H.
[16]
Attorney General Eastern Cape
v Blom
1988 (4) SA
645
(A) at 670 D–F.
[17]
Protea Assurance Co. Ltd v
Matinise
1978 (1) SA
963
(A) at 976 H.