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[2022] ZAECMKHC 89
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Minister of Police v Syce and Another (CA 117/2021) [2022] ZAECMKHC 89 (4 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
CASE
NO.: CA 117/2021
In
the matter between:
MINISTER
OF POLICE
Appellant/Respondent in respect of
Cross-Appeal
and
RYAN
SYCE
First Respondent/Appellant in respect of
Cross-Appeal
SEBASTIAN
CARL BLIGNAUT
Second Respondent
Coram:
D van Zyl DJP & Ah Shene
AJ
Dates
heard: 20 May 2022
Delivered:
4 October 2022
APPEAL
JUDGMENT
AH
SHENE AJ
INTRODUCTION
[1]
This is an appeal against the decision of the Magistrate’s
Court
for the district of Port Elizabeth (now known as Gqeberha).
The first respondent instituted action for damages against the
appellant arising out of a claim for unlawful arrest and detention
and a further claim for an unlawful search conducted by members
of
the South African Police Services. The second respondent’s
claim was limited to what he alleged was an unlawful
search of his
person by the same police officers. The Magistrate delivered
judgment, pursuant to which she dismissed the
first respondent’s
claim for unlawful arrest and detention, with no order as to costs.
Both the respondents were successful
in their claims for an unlawful
search, for which they were awarded R30 000.00 in damages each
plus costs, with interest running
from the date of summons. These
orders form the basis of the appeal and cross appeal by the first
respondent.
APPELLANT’S
GROUNDS OF APPEAL
[2]
The appellant contends that the court erred in the following
respects:
[2.1.]
by awarding interest in respect of the unlawful search,
from the date
of summons, and should have ordered that interest run from the date
of judgment since damages were assessed at its
present value at the
date of judgment; and
[2.2.]
by failing to award costs in favour of the appellant in
respect of
the unlawful arrest and detention claim.
GROUNDS
OF THE CROSS APPEAL BY THE FIRST RESPONDENT
[3]
The first respondent’s cross-appeal pertains to the trial
court’s
(the court) finding that the arrest and detention were
lawful, and the grounds of appeal can be summarised as follows:
[3.1] that the
Magistrate misdirected herself in finding that the first respondent’s
arrest and detention was lawful
and justified;
[3.2] the
Magistrate erred in failing to deal with the issue of discretion;
[3.3] the arrest
was wrongful, in that the arresting officer failed to read the
first respondent’s Constitutional
rights to him at the time of
his arrest, and that the Magistrate failed to place sufficient weight
on the versions, improbabilities
and contradictions contained in the
evidence of the witnesses;
[3.4]
alternatively, in the event of a finding by this Court that the
initial arrest and detention was lawful, that the Magistrate
erred in
finding that the first respondent’s detention for the entire
period in police custody was lawful and justified.
THE
PLEADINGS
[4]
At paragraph 14 of the particulars of claim, the first respondent
pleaded
as follows:
“
14.
Plaintiff’s arrest was wrongful, unlawful and malicious in
that, inter alia:
14.1 he did
not commit an offence in the presence of a peace officer;
14.2 there
was no reasonable suspicion that he had committed a schedule one
offence;
14.3 the
arresting officer failed to explain plaintiff’s constitutional
rights to him; and
14.4 the
arresting officer failed to comply with sections 4(8) of the Police
Standing Order G341.
15.
After plaintiff’s arrest, without a warrant, he was detained
arbitrarily and without just cause at the
Walmer Police Station on
the said charge under Walmer CAS99/12/2014.
16.
On 7 December 2014, plaintiff was eventually released from custody at
the Walmer Police Station on a SAP496
and warned to appear in court
on 6 July 2015.
”
[5]
The first respondent further pleaded that the plaintiff’s
detention
and incarceration at the Walmer Police Station was
wrongful, unlawful and malicious and under the prevailing
circumstances,
inter alia
:
“
17.1
There was no reasonable and/or objective grounds justifying
plaintiff’s subsequent detention after his blood was drawn at
the hospital and his personal particulars were obtained by
the
arresting officer;
17.2 The
arresting officer, as well as the police officers at the Walmer
Police Station, failed to apply their minds, in respect
of the
plaintiff’s detention and circumstances relating thereto; and
17.3 He was
not promptly informed of his right to institute bail proceedings, as
required by Section 50(1)(b) of the Criminal
Procedure Act, 51 of
1997.
”
[6]
During the course of the trial after the conclusion of the first
respondent’s
evidence in chief, the attorney for the first
respondent asked for an amendment to the particulars of claim
deleting paragraphs
14.1 and 14.2. and replacing it with the
following:
“
14.1
the plaintiff’s arrest is wrongful, unlawful and malicious in
that inter alia, the arresting officer informed the plaintiff that he
was obliged to arrest him;
14.2.
the arresting officer refused to listen to the plaintiff’s
request that he be allowed to walk to the third (sic) plaintiff’s
home, leave his vehicle at the garage, not the scene, at
the nearest
petrol station “
TRIAL
PROCEEDINGS
[7]
The evidence relevant to this appeal is briefly summarised. Constable
Tom, the arresting officer, testified on behalf of the appellant.
She and Constable Grimsel, on 6 December 2014, were patrolling
in the
Walmer area of Gqeberha, when they received information on the police
radio that a silver VW Polo, with no registration
number, was
transporting drugs in and around the Fig Tree Centre.
Constables Tom and Grimsel stopped the vehicle and approached
the
driver. They introduced themselves and advised the first
respondent who was the driver of the said vehicle, that they
had
received information that a silver Polo was, transporting drugs.
They enquired from the driver if they could search the
vehicle.
Constable Tom could smell alcohol on his breath and the first
respondent admitted to having consumed alcohol. As
a result,
she administered a breathalyser test, which yielded a result of 0.45
mg. She then advised the first respondent of her
intention to arrest
him and explained his Constitutional rights to him.
[8]
The first respondent was arrested, taken to the Walmer Police
station,
and thereafter to Livingstone Hospital for a blood test to
be administered. He was later detained at the Walmer police
cells
and released on warning at 12h10, the following day, being 7
December 2014.
[9]
Under cross-examination, Constable Tom was questioned about her
discretion
to arrest the first respondent given that he had requested
not to be arrested. He could walk to a friend’s house close by
and leave his vehicle at the petrol station. The witness stated
that such a request was never made to her but in any event
“
he
had alcohol in his body”.
[10]
Sergeant Theron was not present at the time of the arrest. Constable
Grimsel testified
that he was doing duty with Constable Tom, when
they received a description of a silver Polo motor vehicle that had
been parking
in the area known as the Fig Tree. This vehicle was
possibly involved in the transportation of drugs.
[11]
They approached the silver VW Polo vehicle, pulled it off the road
and asked the driver
if a search could be conducted. After having
obtained the driver’s consent, the vehicle was searched.
Sergeant Theron confirmed
that Constable Tom was the arresting
officer. He too smelt alcohol on the first respondent’s
breath and confirmed that
Tom administered a breathalyser test.
He further testified that a breathalyser test is only administered
when a person is
suspected of having been drinking.
ANALYSIS
Cross
Appeal by the first respondent
[12]
The
appellant pleaded that the first respondent was arrested in terms of
Section 40(1)(a), alternatively section 40(1)(b) of the
Criminal
Procedure Act (the CPA).
[1]
The
magistrate in the court, based her judgment on section 40(1)(b).
[13]
Police officers are given extraordinary powers of arrest. An
arrest is always an
infringement of liberty and human dignity unless,
of course, it is justified.
[14]
In
The
Minister of Safety & Security v Van Niekerk
[2]
the
court held that nuanced guidelines exist as to when to arrest without
a warrant and when not to. This must be read in
light of
MR
v Minister of Safety and Security
[3]
and
Minister
of Safety and Security v Sekhoto.
[4]
[15]
In respect
of section 40(1)(b), the position is set out as follows in
Minister
of Police v Dhali:
[5]
"
In
Duncan v The Minister of Law and Order
[6]
,
it was held that the jurisdictional facts for a section 40(1)(b)
defence are that:
(i)
the arrestor must be a peace officer;
(ii)
the arrestor must entertain a suspicion;
(ii)
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.
"
[16]
Whether or
not a suspicion is reasonably entertained within the meaning of
section 40(1)(b) of the CPA is an objective test.
[7]
[17]
In
Mvu
v Minister of Safety and Security
[8]
the court stipulated:
“
the fourth
requirement ie that the suspicion must rest on reasonable grounds is
objectively justifiable: “ the test is not
whether a policeman
believes that he has a reason to suspect, but whether on the
objective approach he in fact has reasonable grounds
for his
suspicion.”
[18]
Justification
for the detention after an arrest, until the first appearance,
continues to rest on the police.
[9]
It is trite that a trial court’s findings of fact and
credibility
are presumed to be correct because the trial court has
had the advantage of seeing and hearing the witnesses and is in the
best
position to determine where the truth lies.
[10]
[19]
A pertinent feature of the evidence led before the court was the
first respondent’s
admission that he consumed alcohol earlier.
This, along with the breathalyser test, confirmed Constable Tom’s
suspicion that
the first respondent was under the influence of
alcohol whilst driving and therefore based on objective facts, she
entertained
a reasonable suspicion that the first respondent had
committed an offence referred to in Schedule 1, which led to his
arrest. The
Magistrate cannot be criticised for coming to this
conclusion.
[20]
I now turn
to whether the magistrate considered the issue of discretion. On
a reading of section 40(1)(b) it has two separate
and distinct issues
each with its own onus of proof. The first issue deals with the
existence of the power to effect an arrest
in the circumstances
contemplated in the section. The power to arrest arises when
the four jurisdictional facts referred
to in paragraph [15] above are
found to be present. The second issue deals with the exercise
of that power. The arresting
officer “may” arrest,
that is, he has discretion to exercise his power of arrest without a
warrant once it is found
that the four jurisdictional facts are
present.
[11]
Unlike in
the case of the existence of the power to arrest, the onus is on the
first respondent to prove that the arresting
officer failed to
properly exercise her discretion in arresting the first respondent.
In
Minister
of Safety and Security v Sekhoto and Another
,
[12]
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.”
[21]
Not unlike
any other exercise of a discretionary power, the power to arrest must
be exercised
inter
alia
in
good faith, rationally and not arbitrarily.
[13]
As
stated by Harms DP in
Sekhoto,
[14]
the principle of litigation fairness demands not only that the
ground(s) on which it is contended there had been an improper
exercise
of a discretion must be pleaded, but the specific facts on
which those grounds are based must be stated, “
It
cannot be expected of a defendant … 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.
”
[15]
Harms DP referred with approval to the pronouncements of Hefer JA in
Minister
of Law and Order v Dempsey
[16]
with regard to the drawing of a distinction between jurisdictional
facts for the existence of a power, and the improper exercise
of that
power once found to exist. This, Hefer JA stated, means that
there are two separate and distinct issues, each having
its own
onus.
[22]
In the present matter, the first respondent had
failed to pertinently allege an improper exercise of a discretion, or
the grounds
on which such an improper exercise of a discretion is
based. The amended pleading goes no further than that the
arrest was
wrongful, unlawful and malicious in that the arresting
officer told the first respondent that she was obliged to arrest him,
and
did not listen to him when he asked to be allowed to walk home.
The first aspect was not substantiated by the evidence, and
the
second aspect cannot be said to have raised the issue of the improper
exercise of the power to arrest with the required clarity
and
specificity so as to alert the appellant thereto. The result
was that the evidence in chief and the cross-examination
of Constable
Tom shows that she was ill prepared to deal with the issue of an
exercise of a discretion. She clearly did not
understand the
questions put to her and an attempt by her to seek clarity on the
nature of the issue that was raised with her,
was effectively
rebuffed.
[23]
The onus was on the first respondent to show that the arresting
officer’s exercise
of her discretion was improper on any of the
specific grounds such as irrationality, arbitrariness or
mala
fides
. No evidence of that nature was elicited. The evidence does
not show that Constable Tom had any other objective, other to ensure
that the first respondent was brought to justice. The first
respondent testified that he was close to his destination, Fairview
Links, and that it was in walking distance from the Figtree where he
was arrested. The fact is that a blood sample of the
first
respondent had to be obtained. There was no evidence that the
first respondent volunteered to accompany the police
to the hospital
for that purpose and that he would agree to give such a sample,
without him being placed under arrest, or that
he would accompany
them to the police station for him to be formally charged.
[24]
The suggestion that the arresting officer did not have to arrest the
first respondent,
but could have released him prior to the blood
test, was untenable. Releasing him, without taking the blood sample
would be a clear
dereliction of her duty as a police officer. The
decision to arrest must be found to fall within the bounds of
rationality. Taking
into account the facts she was faced with,
Constable Tom cannot be faulted for arresting the first respondent at
the time.
[25]
Given the totality of evidence before the magistrate, I am satisfied
that she did not misdirect
herself in this regard as the first
respondent not only failed to properly raise the issue for
determination, but must on
the facts be found to have failed to
discharge the onus of proof in relation to the issue of discretion.
[26]
Mr McKenzie, for the first respondent, however argued that should it
be found that the
arrest and initial detention was lawful, it should
find that the detention at the Walmer Police Station after the blood
was drawn
and the first respondent’s personal particulars were
obtained, was wrongful and unlawful. The grounds upon which it is
contended
that the detention was unlawful, were in my view not
adequately pleaded, and even if it was, there is no evidence on which
to base
a finding that his arrest became unjustifiable and unlawful.
[27]
As
stated, the onus to justify the detention of a person rested on the
appellant. However the issue of the lawfulness of the
continued
detention of an arrested person will only arise when it is pleaded
.
“The onus can arise only after the issue itself has
arisen.”
[17]
This means that the grounds on which it is based must be pleaded.
It should at least be made clear in the pleadings when
and at what
stage it is contended that the detention of the arrested person
become unlawful. A failure to do so may result
in trial
prejudice.
[18]
In
Sandi
v Minister and Security and Another
,
Eksteen J 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.”
As
stated by Eksteen J in
Jacobs
v Minister of Safety and Security
,
[19]
once the initial arrest and detention is found to be lawful, it must
follow
ex
lege
“
that
the ensuing detention was lawful unless and until it becomes unlawful
for some other reason. If the appellant, on the
facts of this
case, wished to rely on extraneous circumstances, outside of the
arrest itself, for the contention that the detention
became unlawful
at some subsequent stage it was incumbent upon the appellant to plead
this.”
A
failure to plead this issue with the required particularity would
otherwise result in the untenable situation that the appellant
would
be required to prove facts which justify the entire duration of the
detention.
[28]
It is trite that an arrested person must be brought before a lower
court as soon as reasonably
possible, but not later than 48 hours
after the arrest. The first respondent was released on 7 December at
12h10, 16 hours after
his arrest and well before the expiry of the 48
hours. It is not clear from the pleadings when exactly during the 16
hours the
first respondent contended his detention became unlawful,
save for alleging that his further detention was not justified after
his blood was drawn and his personal particulars were obtained.
[29]
The purpose
of an arrest is to bring the arrestee to justice.
[20]
It is for the court or a police officer of, or above the rank of
non-commissioned officer as contemplated in sections 59
and 72 of the
CPA, to determine whether the arrestee should be detained pending his
or her trial.
[21]
It “
is
the role of the court (or in some cases a senior officer)”
to determine whether the suspect ought to be detained pending his or
her trial.
[22]
This is
not a matter when subsequent to the arrest of the arrestee it became
evident that there was insufficient evidence
to charge him or her,
that is, that the purpose of the arrest had fallen away. What
the first respondent in essence is attempting
to allege is that a
determination whether the first respondent ought to be detained
pending his trial could reasonably have
been made some time earlier
before his actual release in terms of the relevant section of the CPA
by the police officer concerned.
[23]
[30]
On the
assumption that an unreasonable delay before a determination is made
as contemplated may render the continued detention of
an arrestee
unlawful, I am not convinced that such a finding is justified on the
evidence placed before the court. It is a factual
question which must
be determined on the facts of each case and with the purpose for
which the period of detention after arrest
is used in mind.
[24]
The evidence shows that the first respondent was detained for a
relatively short period of time during which a number of
steps were
taken before his release on warning in terms of section 72 of the
CPA. He was arrested after 8 pm on the Friday.
After his
arrest he was taken to a hospital for his blood to be drawn. It
was after 9 pm that he was detained at the Walmer
Police Station.
That same evening, he was advised of his rights as a detainee in
writing by the completion of a document
known as “
Notice
of Rights in Terms of the Constitution,”
which the first respondent acknowledged by signing a certificate to
that effect. The next morning at 8 am his warning statement
was
taken by an investigating officer to which the matter must have been
allocated in the meantime. Shortly after 12 pm on
the same day,
the first respondent was released on warning. The facts do not
speak to their having been an unreasonable delay.
[25]
[31]
Finally,
concerning the fact that the police failed to inform the first
respondent of his Constitutional rights, the Magistrate
would have
had the advantage of seeing and hearing the evidence. Constable Tom’s
evidence was that she read the constitutional
rights to the first
respondent at the time of the arrest and later at the police station.
This was corroborated by Constable Grimsel.
The first respondent
contended that his rights were never explained to him. That his
rights were explained by him at the police
station is borne out by
the declaration signed by him as referred to in the previous
paragraph. Having considered all the
evidence, the court also
concluded that the witnesses were reliable and truthful. The court
was therefore in the best position
to determine this issue
[26]
and therefore, could only have accepted that the rights were
adequately explained to the first respondent. Having considered the
conspectus of evidence before, the Magistrate, this court has no
reason to conclude that the first respondent’s constitutional
rights were not explained to him.
[32]
The cross-appeal must therefore fail.
Appeal
[33]
I now turn to the appellant’s submissions in respect of the two
grounds of appeal
raised.
[34]
With regard
to the appeal against the order of the Magistrate that the interest
was to run on the amounts of compensation awarded
to the respondents
from the date of service of summons, in
Minister
of Police and Another v Muller
[27]
the court stated the following:
“…
.. In
matters where a plaintiff successfully sues in delict, generally the
claim is for an unliquidated amount as and for damages.
The
damages ultimately awarded was for a non-pecuniary loss. That
kind of damages is generally assessed at the time of judgment.
This case is no different. Therefore interest ought to run from
the date of judgment.”
Damages
in matters such as the present are assessed at the date of judgment
according to present values, and not in depreciated
currency.
The effect is that the respondents did not suffer any loss which
required as a matter of justice that they be compensated
by an order
that interest should run from the date of service of summons.
[35]
In respect
of the second ground of appeal, namely that the Magistrate erred in
failing to award costs to the appellant, as he was
the successful
litigant in respect of the unlawful arrest and detention claim, it is
trite that a court has a discretion whether
or not to award costs.
The power of an 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.
[28]
The
fact that the appeal court would not have made the same order, is not
a ground for interference with a costs order of
the trial court.
[29]
The respondents were substantially successful in their claims, and I
see no reason to interfere with the order of the court
made in the
exercise of its judicial discretion.
[36]
In respect of the costs of this appeal, there are no reasons to
depart from the general
rule that costs follow the result. The
appellant, who is the respondent for the purposes of the
cross-appeal, is entitled to the
costs of the cross-appeal.
[37]
In conclusion, I make the following order:
1.
The
appeal is upheld with costs.
2.
The orders of the Magistrate with
regards to the interest awarded to the two respondents are set aside,
and substituted with an
order in respect of each respondent that:
“
The
defendant is directed to pay interest on the amount of R30 000.00 to
be calculated at the prescribed rate of interest from a
date fourteen
days after the date of judgment to date of payment.”
3.
The appeal in respect of the costs
of the action is dismissed.
4.
The first respondent’s
cross-appeal is dismissed with costs.
SIGNED
L.
AH SHENE
ACTING
JUDGE OF THE HIGH COURT
I
agree:
SIGNED
D.
VAN ZYL
JUDGE
OF THE HIGH COURT
Appearance:
For
Appellant:
Adv Hesselman
Instructed
by:
State Attorney – Port Elizabeth
C/O
Whitesides Attorneys
53
African Street
GRAHAMSTOWN
Tel:
046 - 6227117
For
the Respondent:
Mr McKenzie
Instructed
by:
Peter McKenzie Attorneys
C/O
Dold & Stone Attorneys
10
African street
GRAHAMSTOWN
Tel:
046 - 6222348
Date
heard:
20 May 2022
Date
delivered:
4 October
2022
[1]
Act
51 of 1977.
[2]
2008 (1) SACR 56
(CC).
[3]
2016 (2) SACR 550 (CC).
[4]
2010 (1) SACR 388 (FB).
[5]
(unreported
ECD CA 327/2017 delivered on 26 February 2019.
[6]
1986 (2) SA 805 (A).
[7]
Minister
of Safety and Security v Swarts 2012(2) SA SACR 226 (SCA) at para
[20].
[8]
2009
(2) SACR 291
SACR (GSJ) at para [9], and the authorities referred to
in fn 16.
[9]
Minister
of Police v Du Plessis
2014 (1) SACR 217
(SCA) at para [17].
[10]
Rex
v Dhlumayo
1948
(2) SA 677
(A) 705;
S
v Hadebe
1997 (2) SACR 641
(SCA).
[11]
Supra
at fn 4 at para [25].
[12]
Supra.
[13]
The
grounds are the traditional common law grounds of review and the
Constitutional principle of rationality. Sekhoto supra
at
paras [32] to [36] and Naidoo v Minister of Police and Others
2016
(1) SACR 468
(SCA) at paras [40] to [41].
[14]
Supra.
[15]
Supra
at para [50].
[16]
1988
(3) SA 19
(A) at 37 B – 39 F.
[17]
Minister
of safety and Security v Slabbert
[2010] 2 All SA 474
(SCA) at para
[21].
[18]
With
regard to the function of pleadings, see Imprefed (Pty) Ltd v
National Transport Commission
1993 (3) SA 94
(A) at 107 C – E.
[19]
(Case
no CA 327/2012) [2013] ZAECHGHC 95 (23 September 2013).
[20]
Sekhoto
supra at para [42].
[21]
Sekhoto
supra at para [44].
[22]
Sekhoto
supra at para [44].
[23]
See
for example Rensburg v the Minister of Police and Another (557/2021)
[2022] ZASCA 105
(29 June 2022).
[24]
Rensburg
supra at paras [23] to [24].
[25]
Rensburg
v The Minister of Police at para [24].
[26]
Supra
at fn10 at para [18]
[27]
(Case
No. CA148/2017) GHTZA (3 May 2018).
[28]
Attorney
General Eastern Cape v Blom
1988 (4) SA 645
(A) at 670 D-F
[29]
Protea
Assurance Co. Ltd v Matinise
1978 (1) SA 963
(A) at 976 H.