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[2021] ZAGPPHC 64
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Van deVenter v Minister of Police (87269/15) [2021] ZAGPPHC 64 (15 January 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
15
January 2021
CASE
NO: 87269/15
In
the matter between:
W
J VAN
DEVENTER
Plaintiff
and
THE
MINISTER OF
POLICE
Defendant
J U D G M E N T
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email. The date
and
time for hand-down is deemed to be 10h00 on
December 2020.
TEFFO, J
:
Introduction
[1]
This is a claim for
damages suffered by the plaintiff as a result of his arrest and
detention on 22 December 2014.
[2]
It is common cause that
the plaintiff was arrested by members of the South African Police
Services at his residence at Section 9,
Vlakfontein,
Bronkhorstspruit, Gauteng on 22 December 2014. He was detained
at the Bronkhorstspruit police station and later
released on the same
day. The charges against him were subsequently withdrawn.
The parties prepared a stated case and
also submitted the heads of
argument. The matter was then decided on the papers.
[3]
I was requested to
determine the issue of liability only. The issue of quantum was
therefore postponed for later determination.
Pleadings
[4]
In his particulars of
claim, the plaintiff alleges that he was arrested on a charge of
possession of an unlicensed firearm.
His arrest was wrongful
and/or malicious and he was detained without any merit and/or a
reasonable suspicion for justifying the
arrest and/or of committing
an offence and/or consideration of his explanation. In the plea
the defendant contends that the
plaintiff was found in possession of
an unlicensed firearm and this was the reason for his arrest.
Common
cause or agreed facts
[5]
The salient facts which
led to the arrest of the plaintiff are essentially common cause.
5.1
On or around November 2014, the
plaintiff’s uncle, Mr Petrus
Gerhardus van Deventer, visited the plaintiff at his residence.
He had with him a firearm
which he requested the plaintiff to keep at
his residence since he did not want to leave it in his vehicle for
safety reasons.
5.2
The plaintiff took the firearm and
placed it in a safe at his
residence. When his uncle left his residence, he forgot to take
the firearm with him.
5.3
The plaintiff later informed his
uncle that he forgot the firearm.
The uncle said he would come and pick it up when he has time.
The firearm remained
locked at the plaintiff’s residence in the
safe.
5.4
On 21 November 2014 the plaintiff’s
uncle passed on. At
that time, he had not collected the firearm at the plaintiff’s
residence.
5.5
On or about 22 December 2014 at
approximately 02h00 and whilst
sleeping at his place of residence, the plaintiff and his wife were
woken up by some strange noise
around the residence which sounded
like someone was attempting to break into the house.
5.6
Upon further inspection, the plaintiff
realised that the noise was
from unknown people who were attempting to commit a robbery.
5.7
In order to protect himself and
his family, he took out the firearm
which had been left by his uncle at his residence and fired a shot at
the door. This
resulted in the fatal shooting of one of the
intruders.
5.8
He went out of the house and saw
a person lying down in a pool of
blood. The person was still breathing at the time.
5.9
He then realised that his other
family members were seriously
assaulted by the robbers. The family members informed him that they
were under constant assault since
01h00. Subsequent thereto, the
robbers drove away in one of the vehicles belonging to his brother.
5.10
Police were summoned to the scene and when
they arrived, they found
the person lying down on the floor. The person was later taken to
hospital where he succumbed to the injuries.
5.11
The police asked the plaintiff as to what happened.
He informed
them that he shot the person after he concluded that he had come to
rob his family.
5.12
The police asked for the firearm that he used
to shoot the deceased
and he showed them the firearm that belonged to his uncle.
5.13
The police further asked for the licence for
the firearm. The
plaintiff told them that the said licence was with the executor of
his deceased uncle’s estate.
The police then arrested him
for possession of an unlicensed firearm.
5.14
He was subsequently detained at Bronkhorstspruit
police station on
the same day and later released after appearing in court. The
charges against him were withdrawn.
The issues for determination
[6]
The main issue for
consideration in these proceedings is whether or not the arrest and
detention of the plaintiff was justified.
Aligned to this is the
question whether, on the facts of this case, the plaintiff can be
said to have committed or attempted to
have committed the offence in
the presence of the police. This issue revolves around whether
or not the firearm that the
plaintiff was found in possession of at
the time of his arrest, was licensed.
The
law
[7]
It is trite that an arrest
without a warrant is
prima
facie
unlawful and the
defendant bears the
onus
of justifying the lawfulness thereof
[1]
.
[8]
Section 40(1)(a) of Act 51
of 1977 (“the Criminal Procedure Act”) provides that a
peace officer may without a warrant
arrest any person who commits or
attempts to commit any offence in his/her presence.
[9]
The jurisdictional factors
that must be established for a successful invocation of section
40(1)(a) are –
(a)
the arrestor must be a
peace officer;
(b)
an offence must have been
committed by the suspect or there must have been an attempt by the
suspect to commit an offence; and
(c)
the offence or attempt
must occur in the presence of the arrestor
[2]
.
[10]
The expression “
in
the presence of
”
as contained in section 40(1)(a) has not been interpreted
consistently. Ordinarily the expression means “
within
the eyeshot of that police official or on her/his immediate vicinity
or proximity
”
[3]
.
[11]
In
Gulyas
v Minister of Law and Order
[4]
,
the court held as follows:
“
In my view the intention was to authorise a warrantless
arrest also in the case of an offence that has already been
committed. To
hold that the peace officer can only arrest without a
warrant someone who is still committing the offence seems to be
absurd and
not what the Legislature intended. Parliament
intended that if, from the peace officer’s own perception, the
offence
had just been committed, he should have the power to arrest
without a warrant. This involves the peace officer being on the
scene of the offence either at the time of its commission or at the
tail end of it, so that he personally (or otherwise perceives)
that
an offence has just been committed.
”
[12]
In
Nel
v Minister of Police
[5]
,
the court said the following:
“
Most importantly, the assessment of the legality of an
arrest in terms of section 40(1)(a) requires a determination of
whether the
facts observed by the arresting officer as a matter of
law prima facie establish the commission of the offence in question.
The
question to be posed and answered is – did the arresting
officer have knowledge at the time of the arrest of such facts which
would in the absence of any further facts or evidence, constitute
proof of the commission by the arrestee of the offence in question?
The arresting officer’s honest and reasonable subjective
conclusion from the facts observed by her/him is not of any
significance
to the determination of the lawfulness of her/his
conduct.
”
[13]
Section 3 of the Act
[6]
reads:
“
(1) No person may possess a
firearm unless he or she holds for that firearm –
(a)
a licence, permit
or authorization issued in terms of this Act; or
(b)
a licence, permit,
authorization or registration certificate contemplated in item 1, 2,
3, 4, 4A or 5 of Schedule 1
.”
[14]
In terms of the provisions
of section 147(1)
[7]
,
in the case of the death of the holder of a firearm licence, the
firearm in question must be disposed of as prescribed.
The
executor of the estate of the deceased person who comes into
possession of the firearm licensed to the deceased must store
the
firearm as prescribed
[8]
.
Discussion
and application of the law to the facts
[15]
It is common cause between
the parties that the plaintiff was arrested and subsequently detained
for being found in possession of
an unlicensed firearm. Counsel
for the plaintiff correctly submitted in his heads of argument that
the defendant can only
rely on section 40(1)(a) of the Criminal
Procedure Act to justify the arrest and detention of the plaintiff.
This therefore
renders the provisions of section 40(1)(b)
[9]
irrelevant in these proceedings.
[16]
Counsel for the plaintiff
further submitted that because the defendant has conceded that the
firearm that the plaintiff was found
in possession of at the time of
his arrest, was licensed, the arrest and detention of the plaintiff
was not justified. The
defendant can therefore not persist with
its argument that the plaintiff’s arrest and detention were
lawful.
[17]
In order to deal with
these issues, it is prudent to look at the meaning of the word
“
unlicensed
”.
The Oxford Advanced American Dictionary defines “
unlicensed
”
as follows:
(a)
“
Not
having an official license
”;
(b)
“
Unauthorised
”.
[18]
Whether or not there was a
concession by the defendant that the firearm was licensed at the time
of the plaintiff’s arrest,
is immaterial. The defendant’s
counsel correctly submitted in his heads of argument that as at the
time of the plaintiff’s
arrest, the plaintiff did not have a
licence to possess the firearm that he used to shoot the intruder.
He could not produce
a licence in his own name which proved that he
was authorised or permitted in terms of section 3 of the Act to
possess the firearm.
The licence that was later produced had
been issued to his deceased uncle and not to the plaintiff.
[19]
Although the plaintiff
shot an intruder who later died, he was not arrested for the assault
and/or murder.
[20]
The firearm that was found
in the possession of the plaintiff at the time of his arrest,
belonged to his deceased uncle, Mr P G
van Deventer, and it was only
his deceased uncle who was licensed to possess that specific
firearm. The firearm was not dealt
with in terms of section 147
of the Act.
[21]
It can therefore not to be
correct to argue that when he was arrested, the plaintiff was in
possession of a licensed firearm while
he did not hold a licence to
possess the firearm at the time.
[22]
The plaintiff was found in
possession of an unlicensed firearm at the time of his arrest. He
held the firearm unlawfully as he was
not authorised to do so.
The facts observed by the arresting officer at the time
prima
facie
established the
commission of the offence of unlawful possession of a firearm or
possession of an unlicensed firearm.
[23]
An issue was raised that
the defendant cannot contend now that the plaintiff was not licensed
to possess the firearm at the time
of his arrest and detention as a
justification for his arrest and detention. The basis thereof was
that it is not the case that
the plaintiff has been called upon to
meet. In my view this issue has no merit. The defendant has
been consistent in his
plea that the plaintiff was arrested for being
found in possession of an unlicensed firearm.
[24]
What has been pleaded by
the defendant is consistent with the stated facts.
[25]
In my view the
jurisdictional factors that apply to an arrest and detention in terms
of section 40(1)(a) have been established.
I am therefore
persuaded that the defendant has discharged the
onus
of proving the lawfulness of the arrest. It follows that the
subsequent detention of the plaintiff was also lawful.
The
action of the plaintiff falls to be dismissed.
[26]
In the result I make the
following order:
1.
The plaintiff’s
action is dismissed.
2.
The plaintiff is ordered
to pay the costs of the action.
M J TEFFO
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date
of hearing
15 October 2020
Date
handed down 15
January 2021
For
the plaintiff
D D Mosoma and I T Ngwana
Instructed
by
Gildenhuys Malatji Inc
For
the defendant
M Ngoetjana
Instructed
by
State Attorney Pretoria
[1]
Zealand
v Minister for Justice and Constitutional Development & Another
[2008] ZACC 3
;
2008
(4) SA 458
(CC) par 25;
Minister
of Safety and Security v Sekhoto & Another
2011 (5) SA 367
(SCA) para 7
[2]
National
Commissioner of Police and Another v Coetzee
2013 (1) SACR 358
(SCA) at paras [13]-[14]
[3]
In
Levuna
v R
1943 NPD 323
at 325 where Hathorn JP (Selke J concurring) was of the
view that a peace officer’s power to arrest without a warrant
should
not be confined to cases where she/he can actually see the
offender committing the offence, whilst in
Fnacult
v Kalil
1933 TPD 348
at 251, it was held (in relation to section 26 of Act
31 of 1917 – predecessor of section 40) that the power to
arrest
their entirety (compare also
Minister
of Justice and Others v Tsose
1950 (3) SA 88
(T) at 92-3)
[4]
1986
(3) SA 934
(C) 953H-I
[5]
(CA62/2017)
[2018] ZAECGHC 1 (23 January 2018); see also
Scheepers
v Minister of Safety and Security
2015 (1) SACR 284
(ECG) at [20]- [21]; Du Toit
et
al
,
Commentary
on the Criminal Procedure Act
Vol
p5-14
[6]
The
Firearms Control Act, 60 of 2000
[7]
The
Act
[8]
Section
147(2)
[9]
The
Criminal Procedure Act