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[2022] ZAECELLC 18
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Robiyana v Minister of Police (423/18) [2022] ZAECELLC 18 (26 July 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
[EAST
LONDON CIRCUIT LOCAL DIVISION]
CASE
NO.423/18
In
the matter between:
MONWABISI
ROBIYANA
Plaintiff
And
MINISTER
OF
POLICE
Defendant
JUDGMENT
TOKOTA
J
Introduction:
[1]
The plaintiff instituted an action against the defendant claiming
payment of R600 000.00
for damages arising from the alleged
unlawful arrest and detention. The parties agreed that liability be
separated from quantum
of damages, and an order to that effect in
terms of Rule 33(4) of the Uniform Rules of Court was accordingly
made. Therefore, at
this stage, the Court has to determine the issue
of liability only. The claim is resisted by the defendant.
Factual
matrix:
[2]
Avis Car Rental is conducting a business of hiring out its vehicles
to the general
public. The vehicles that are hired at its branch in
East London airport are parked in front of the airport. Other
vehicles are
parked at the back yard. These are said tobe vehicles
with minor dents having been slightly damaged.
[3]
Between 1 and 2 May 2017 it was discovered in the morning that thirty
tyres were stolen
from the vehicles that are kept at the back yard.
The police were called and they responded. They visited the crime
scene. Fingerprint
experts lifted finger prints from the vehicles
whose tyres were stolen.
[4]
Sergeant Myeki (Myeki) was allocated the docket as the investigating
officer in the
matter. He received the docket on 3 May 2017. Upon
receipt of the docket he visited the crime scene where he interviewed
the complainant.
There was no clue about the suspects and the docket
was archived.
[5]
On 25 May 2017 the fingerprint expert compared the scene of crime
prints, marked LCRC
33/5/2017 with the linked impression fingerprint
image of suspect Monwabisi Robiyana and found the prints to be
corresponding with
the his left middle finger. The expert came to the
conclusion that both prints belonged to the same person.
[6]
On 19 July 2017, Myeki got the docket back and started working on it.
On 25 July 2017
he received a fingerprint link from the Local
Criminal Record Centre, East London. The plaintiff’s finger
print was linked
to one of the vehicles from which the tyres were
stolen.
[7]
On 4 August 2017 at about 3h15 am, Myeki together with his colleagues
visited the
house of the plaintiff. They found the plaintiff at his
house. Myeki introduced himself and informed the plaintiff of the
purpose
of his visit. He enquired from the plaintiff if he had been
to Avis, at any stage, and the plaintiff replied in the negative. The
plaintiff informed Myeki that he had never been to Avis car rental
and had never worked there. Myeki informed the plaintiff of
the theft
from Avis and that his finger print was linked to one of the vehicles
from which the tyres were stolen. He asked him
to explain how it
happened that his finger print was found there and warned him of his
rights. In his warning statement the plaintiff
is recorded as having
said: “
I deny the allegations against me. I never went to
Avis nor work (sic) or steal at Avis premises. I drive a taxi as my
work. I do
not do crime. That’s all I wish to state.”
[8]
Myeki was not satisfied with the response from the plaintiff and
concluded that he
must have been involved in the theft of the tyres.
He asked him where the tyres were. The plaintiff denied any knowledge
of tyres.
Myeki informed him of his constitutional rights and
arrested him. The plaintiff was arrested on 4 August 2017 and
appeared in Court
on the following week on Monday, 7 August 2017 on
which day he was released on bail. The case against the plaintiff was
subsequently
withdrawn by the State on his third appearance.
[9]
The evidence of the plaintiff was mainly the denial of the
allegations against him.
He testified that what was written in the
warning statement was all that he said to Myeki. However, he
testified further that Myeki
mentioned the name of his friend Myataza
and that reminded him of the fact that, at some stage, he accompanied
Myataza who was
hiring vehicles, to collect or drop the vehicles at
Avis. Myataza was not called as a witness.
[10]
The defence of the defendant was that Myeki arrested the plaintiff on
reasonable grounds of suspicion
of having committed an offence
referred to in schedule 1 of the Criminal Procedure Act 51 of 1977
(the Act). Myeki was therefore
entitled to arrest him without a
warrant in terms of section 40(1)(b) of the Act.
Discussion:
[11]
Section 40(1)(b) provides:
'A peace officer may
without warrant arrest any person -
(a) . . .
(b) whom he reasonably
suspects of having committed an offence referred to in Schedule 1,
other than the offence of escaping from
lawful custody.'
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; (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.
[1]
Myeki
is a peace officer; theft is a Schedule 1 offence.
[12]
The sole enquiry in the matter is whether Myeki reasonably suspected
the plaintiff of having
committed theft at the time he arrested him
at his house on 4 August 2017. As was said by Lord Devlin in
Shaaban
Bin Hussien and Others v Chong Fook Kam and Another
[2]
:
'Suspicion
in its ordinary meaning is a state of conjecture or surmise where
proof is lacking; "I suspect but I cannot prove".
Suspicion
arises at or near the starting point of an investigation of which the
obtaining of prima facie proof is the end.
'
This
passage was quoted with approval in
Duncan
v Minister of Law and Order
[3]
and
the Full Bench of this Division
.
[4]
The suspicion must be reasonable and the test for such reasonableness
is objective
[5]
: Myeki was
required to act
'as
an ordinary honest manwould act and not merely act on wild suspicions
but on suspicions which have a reasonable basis'
.
[6]
[13]
In considering whether Myeki's suspicion was reasonable, regard must
be had to,
inter
alia,
what was said by Jones J in
Mabona
and Another v Minister of Law and Order and Others
[7]
where the Learned Judge said:
'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, i.e. something which
otherwise would be
an invasion of private rights and personal liberty. The reasonable
man will therefore analyse and assess the
quality of the information
at his disposal critically, and he will not accept it lightly or
without checking it where it can be
checked. It is only after an
examination of this kind that he will allow himself to entertain a
suspicion which will justify an
arrest. This is not to say that the
information at his disposal must be of sufficiently high quality and
cogency to engender in
him a conviction that the suspect is in fact
guilty. The section requires suspicion but not certainty. However,
the suspicion must
be based upon solid grounds. Otherwise, it will be
flighty or arbitrary, and not a reasonable suspicion.'
[14]
Myeki’s suspicion was based on the following:
(a)
He received a report from the Local Criminal Record Centre that the
finger prints of the
plaintiff were linked to the vehicle from which
the tyres were stolen.
(b)
On 4 August 2017 he proceeded to the plaintiff’s house and
interviewed the plaintiff.
The plaintiff denied that he had ever been
at Avis, thus, raising questions as tohow it came about that his
finger prints happened
to be there where the theft was committed.
(c)
The explanation did not account for the finger print found in the
vehicle.
[15]
Mr
Mafu,
appearing for the plaintiff, argued that Myeki should
have taken further steps by conducting further investigations before
effecting
the arrest. He argued that even if he was entitled to
arrest he had a discretion whether or not to arrest and he failed to
exercise
that discretion. Mr
Pretorius,
who appeared for the
defendant, relied heavily on the unreported case of
Pike
referred to above and submitted that
Pike’s
case is on
all fours with the present matter.
[16]
The submission by Mr
Mafu,
can only be based on the premise
that the plaintiff informed Myeki about Myataza. Myeki denied that
the plaintiff ever mentioned
the name of Myataza. He said he was
hearing the name for the first time in Court. There are certain
features which militate against
the credibility of the evidence of
the plaintiff in this regard. In his written statement which he made
to Myeki he never mentioned
Myataza. He confirmed that the statement
was correct. Moreover, Myataza was never called as a witness. He did
not even specify
as to when he accompanied Myataza to Avis either to
collect or to drop the hired vehicles. He did not say what make of
the vehicle(s)
that were hired by Myataza. His version falls to be
rejected in this regard. On the other hand, Myeki’s evidence
was straight
forward. He impressed me as an honest and credible
witness.
[17]
The decision to arrest must be based on the intention to bring the
arrested person to justice.
It has been held that 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.’
[8]
[18]
Once the jurisdictional facts for an arrest in terms of s 40(1)(b)
are present, the discretion
arises. The question of whether there are
any constraints on the exercise of discretionary powers is
essentially a matter of construction
of the empowering statute. The
learned Judge of Appeal Van Heerden JA said the following in
Duncan
[9]
“
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
ER 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.”
[19]
When exercising such discretion, the arresting officer must ask
himself whether (a) the person
he is about to arrest is guilty of the
offence; (b) whether there are any reasonable grounds for that
suspicion; and (c) must comply
with principles laid down in
Shidiack’s
case
[10]
where it was said:
'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 lie; 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.'
[20]
The purpose of the arrest must be to bring the suspect to justice.
Therefore, the arrested person
must be taken to Court within the
prescribed period of 48 hours for the Court to further deal with him.
Once the arrested person
has been taken to Court, the authority to
detain, that is inherent in the power to arrest, is exhausted. The
authority to detain
the suspect further is then within the discretion
of the court.
[11]
[21]
In
casu
the plaintiff was arrested on Friday and taken to
Court on Monday, which was the next available Court date. He was
released on
bail on the same day, which is an indication that the
arresting officer did not object thereto.
[22]
It has been held that the enquiry to be made by the peace officer is
not how best to bring the
suspect to trial: but 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 criticised for arresting a suspect
for that purpose. It is sufficient to say that the mere serious
nature
of the offence which ordinarily are capable of attracting
sentences of imprisonment may justify the arrest for the purpose of
enabling
a court to exercise its discretion as to whether he should
be detained or released, and, if so, on what conditions, pending the
trial.’
[12]
[23]
Once the jurisdictional facts have been established, it is for the
plaintiff to prove that the
discretion was exercised in an improper
manner.
[13]
In
casu
the plaintiff did not plead that the discretion was improperly
exercised nor did he so contend. Mr
Mafu
merely
submitted that Myeki did not exercise his discretion.
[24]
In my view there were reasonable grounds upon which the suspicion was
based. The plaintiff did
not inform Myeki that he used to collect or
drop cars at Avis on behalf of one Myataza at the time of his arrest.
He flatly denied
having been at Avis at any stage. The name of
Myataza only came up during the trial. This must have been mentioned
in order to
explain away the presence of his finger print in one of
the vehicles from which the tyres were stolen. Furthermore, Myataza
was
never called as a witness and when I asked Mr
Mafu,
during
the debate, as to why Myataza was never called as a witness he could
not provide an answer. That leaves us with a suspicion
that he would
not support the evidence of the plaintiff hence he was not called.
Conclusion:
[25]
In all the circumstances I am of the opinion that the defendant has
discharged the
onus
resting on him in that all the
jurisdictional facts as envisaged in section 40(1)(b) have been met.
Accordingly, the plaintiff’s
claim cannot succeed.
[26]
In the result I make the following order:
The
plaintiff’s claim is dismissed with costs.
B
R TOKOTA
JUDGE
OF THE HIGH COURT
Appearances:
For
the plaintiff:
A Mafu
Instructed
by Magqabi Seth Zitha Attorneys
For
the Defendant: F T
Pretorius
Instructed
by State Attorney
Date
of hearing:
5 July 2022.
Date
delivered:
26 July 2022.
[1]
Duncan
v Minister of Law and Order
1986
(2) SA 805
(A) at 818G – H.;
Minister
of Safety & Security v Sekhoto
2011
(5) SA 367
(SCA)
(2011 (1) SACR 315
;
[2011] 2 All SA 157
;
[2010]
ZASCA 141)
para.6
[2]
[1969]
3 All ER 1626
(PC) at 1630
[3]
Duncan
Footnote
1 at 819I;
Minister
of Law & Order v Kader
1991
(1) SA 41
(A) ([1990] ZASCA 111) at 50H
[4]
See
also
Minister
of Police vPike
(CA235/2017)
[2018] ZAECGHC 100 (16 October 2018)
[5]
R
v Van Heerden
1958
(3) SA 150
(T) at 152E;
Duncan
v Minister of Law and Order
1986
(2) SA 805
(A) at 814E);
Minister
of Law and Order and Others v Hurley and Another
1986
(3) SA 568
(A) at G 579F-
[6]
per
Jones AJP in
Rosseau
v Boshoff
1945 CPD 135
at 137;
S
v Purcell-Gilpin
1971
(3) SA 548
(RA) at 553G-H
[7]
1988
(2) SA 654
(SE) at 658F-H
[8]
Duncan
supra
at 818B – C.
[9]
Ibid
At 818H-J
[10]
Shidiack
v Union Government (Minister of the Interior)
1912
AD 642
at 651 – 652.
[11]
Sekhoto
note
1 para. 42; c/f
De
Klerk v Minister of Poli
ce
2021
(4) SA 585
(CC) para.72
[12]
Sekhoto
footnote
1 supra, at para 44
[13]
Duncan
at
819B-E; Sekhoto ibid para.49