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[2021] ZAGPPHC 149
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Ntuli and Another v S (2858/2017) [2021] ZAGPPHC 149 (10 March 2021)
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case
Number
:
2858/2017
REPORTABLE
OF INTEREST TO OTHER
JUDGES
In the matter between:
NTULI
CASANDRA
FIRST PLAINTIFF
MBALI
KHUMALO
SECOND PLAINTIFF
and
THE MINISTER OF
POLICE
DEFENDANT
JUDGMENT
KUBUSHI J,
This judgement is
handed down electronically by circulating to the parties’
representatives by email and by uploading on Caselines.
INTRODUCTION
[1]
The claim in this matter involves two plaintiffs who were arrested
and detained by
members of the South African Police Service (“SAPS”).
Initially the plaintiffs had instituted separate actions under
case
numbers 2851/2017 and 2858/2017. Prior to the commencement of the
proceedings, the separate actions instituted by the plaintiffs
were
consolidated under case number 2858/2017. The plaintiffs also applied
for an amendment of their particulars of claim to the
effect that the
date of arrest should read 10 August 2016 and the date of the release
of the plaintiffs 15 August 2016. The application
was granted and the
particulars of claim accordingly amended.
[2]
The matter comes before this court, against the defendant, the
Minister of Police
(“the Minister”), by way of claims for
unlawful arrest and detention of the first plaintiff, Cassandra Ntuli
(“Ms
Ntuli”) and the second plaintiff, Nqobile Patience
Mbali Khumalo (“Ms Khumalo”), respectively. It is alleged
that the plaintiffs were unlawfully arrested by members of SAPS at
21h30 on 10 August 2016 and subsequently detained at Sebokeng
Police
Station during the period 10 August 2016 up until 15 August 2016 when
they were taken to court, where the prosecutor refused
to enrol the
matter. When the plaintiffs left the cells the investigating officer
of the case instructed them to go with him. This
led to a dispute
between the parties as to whether when the plaintiffs left the
holding cells after the prosecutor had refused
to enrol the matter,
they were released from detention or they were still in detention.
[3]
On application by the plaintiffs’ counsel,
per
agreement
between the parties, an order separating the issues of liability and
quantum
was granted. The matter proceeded only on liability
and the issue of
quantum
was postponed.
[4]
At all material times, the Minister was the executive authority
responsible for SAPS.
It is averred in the particulars of claim that
the Minister is vicariously liable for the unlawful actions, or
omissions, of the
said employees of SAPS, who were allegedly acting
in their capacity and within the cause and scope of their authority
and employment
as members of SAPS.
[5]
For ease of reference, and unless the context otherwise dictates, I
shall, in this
judgment refer to the plaintiffs in their respective
names and collectively as the plaintiffs.
THE ADMISSIBILITY OF
EVIDENCE
[6]
The evidence in this matter was led by two witnesses, one for the
plaintiffs and one
for the defence. The testimony on behalf of the
plaintiffs was tendered by Ms Khumalo whilst for the defence it was
proffered by
Lieutenant Colonel Grobler (“Colonel Grobler”),
who is one of the police officers who effected the arrest of the
plaintiffs.
I note that the parties in their heads of argument refer
to him as a Captain but he introduced himself as Lieutenant Colonel
at
the hearing. I shall, therefore, in this judgment refer to him as
such.
[7]
During the trial, the parties’ respective counsel referred the
witnesses under
cross examination to the statements other than those
made by the witness being cross examined. It became a bone of
contention whether
a witness under cross examination could be asked
questions about the contents of a statement, even though such
statement was discovered,
that was not tendered into evidence by the
author thereof, and whether evidence elicited from such a statement
could be admitted
to evidence. In that regard, I ruled that counsel
must argue the matter during closing arguments in order for a ruling
to be made
as to the admissibility of such evidence.
[8]
In their closing remarks both counsel for the plaintiffs and the
defendant conceded
that the pre-trial minutes, filed of record, are
the starting point in determining the admissibility of the evidence
relating to
the discovered documents. The agreement between the
parties in relation to discovered documents was couched as follows in
the pre-trial minutes:
“
The
parties agree that the documents contained in the document bundle
will be what they purport to be and that formal proof of the
documents is not required unless one party notifies the other party
before the trial date that it requires the document to be proven,
the
truth and the contents of the document will still be required to be
proven unless the parties agree otherwise.”
[9]
The parties were, correctly so, eventually in agreement that in order
for the statements
referred to during cross examination to be
admitted to evidence, they ought to have been handed in by the
author(s), thereof. Failing
such, it is required that the party
seeking such admission apply to have same admitted on the basis of
either section 3 of Law
of Evidence Amendment Act
[1]
or Civil Proceedings Evidence Act.
[2]
The statements were not handed in by their respective authors, nor
was application for their admission made. On account thereof,
the
evidence relating to such statements should be rejected on the basis
of inadmissible hearsay.
[10]
On that basis, only the evidence of the plaintiffs’ witness, Ms
Khumalo and that of the
defendant’s witness, Colonel Grobler
which was tendered in court, together with the statements authored by
them, formed the
evidence on which this matter stands to be
adjudicated.
[11]
The parties were agreed that the defendants would bear the
onus
to prove the lawfulness of the arrest and the duty
to adduce evidence, therefore, the defendant was the first to lead
evidence.
THE UNLAWFUL ARREST
[12]
The key issue for determination by this court at this stage of the
proceedings, is whether the
plaintiffs’ arrest and detention
from 21h30 on 10 August 2016 until 15 August
2016, at 15h00 was
lawful. This requires the court to further examine
whether at the time of the arrest, the arresting officer had
exercised a reasonable
suspicion that the plaintiffs had committed
the offence for which they were arrested, to wit, kidnapping; and if
it is so, whether
the arresting officer exercised a discretion
whether or not it was necessary to arrest the plaintiffs; and whether
the plaintiffs’
detention beyond the 48-hour period, was
lawful.
WHETHER THE ARREST WAS
LAWFUL
[13]
As the basis for the arrest, the defendant relies on section 40 (1)
(b)
of the Criminal Procedure Act 51 of 1977 (the CPA). This
sub-section provides that:
“
(1)
A peace officer may without a warrant, arrest any person:
(b)
whom he reasonably suspects of having committed an offence referred
to in schedule 1, other than
an offence of escaping from lawful
custody.”
[14]
The jurisdictional requirements for a successful reliance on section
40 (1)
(b)
of the
CPA are trite. In the matter of
Minister
of Safety and Security v
Sekhoto
,
[3]
the Supreme Court of Appeal stated that the following four
jurisdictional factors should be present to justify an arrest in
terms
of section 40 (1)
(b)
of the
CPA:
(i)
The arrestor must be a peace officer;
(ii)
The arrestor must entertain a suspicion;
(iii)
The suspicion must be that the suspect, committed
an offence referred to in schedule 1; and
(iv)
The suspicion must rest on reasonable grounds.
[15]
In the present circumstances, it is common cause that the arrestor
was a peace officer, and the
offence alleged to have been committed
fell under schedule 1 of the
Criminal Procedure Act. It
is not in
dispute that Colonel Grobler had a suspicion that the plaintiffs
committed the offence of kidnapping. What is in dispute
is whether
such suspicion rested on reasonable grounds.
Did
the suspicion rest on reasonable grounds
?
[16]
The test as to whether a reasonable suspicion could have existed and
did exist, is to be determined
by an objective standard, namely that
of a reasonable man with the knowledge and experience of a peace
officer based upon the facts
and circumstances then known to the
arresting peace officer.
[4]
[17]
In the matter of
Mvu
v Minister of Safety and Security
,
[5]
when explaining reasonable suspicion, the court made the following
remarks:
“
The
fourth requirement, i.e. that the suspicion must rest on reasonable
grounds, is objectively justiciable: “...the test
is not
whether a policeman believes that he has reason to suspect, but
whether on an objective approach, he in fact has reasonable
grounds
for his suspicion”.
[18]
Whilst in
Minister
of Safety and Security v Swart
,
[6]
the court expressed itself as follows:
“
It
is furthermore trite that the reasonableness of the suspicion of any
arresting officer acting under
s 40(1)(b)
must be approached
objectively. The question is whether any reasonable person,
confronted with the same set of facts, would form
a suspicion that a
person has committed a Schedule 1 offence.”
[19]
In order to justify the arrest, the defendant called Colonel Grobler
as a witness. According
to Colonel Grobler, the arresting officer in
this instance, he was part of a search and rescue team of a victim
that was allegedly
kidnapped. The team had earlier that day at
approximately 20h00 on 10
August 2016, assembled at Everton Police Station where they were
briefed regarding the kidnapping of one Victor Tsotetsi (“Victor”).
It was conveyed during the briefing to the team that the suspects who
kidnapped Victor were travelling in a two door red Golf with
registration number BMT
451 GP (“the Golf”). They
were also informed that
according to information received, the Golf might be in the area of
Lenasia.
[20]
Armed with the aforesaid information Colonel Grobler and a certain
Captain Jacobs proceeded in
the direction of Lenasia in an unmarked
police motor vehicle in search of the motor vehicle fitting the
description they were given
during the briefing. On entering the area
of Lenasia Colonel Grobler and Captain Jacobs parked their motor
vehicle at a garage
to purchase cool drinks and to fill in fuel. It
was approximately 21h30 and the garage area was well lit. Whilst at
the garage,
Colonel Grobler noticed a stationary Golf motor vehicle
with a reddish colour, parked on the opposite side of the road
adjacent
to the garage. They decided to investigate same. They drove
with their motor vehicle in the direction of the stationery Golf.
They
drove passed the Golf and in doing so noticed that it was indeed
the Golf with the corresponding registration number as provided
during the briefing. Colonel Grobler also noticed that there were
three occupants sitting in the rear seat of the Golf. Having
satisfied themselves that the Golf matched the identity of the motor
vehicle they were looking for, they called for backup. After
some
time, before the backup arrived, the two officials decided not to
wait any longer but to proceed to confront the occupants
of the Golf.
They drove towards the Golf which was still parked in the same place
with its rear end facing towards a wall and the
front facing the
garage. They parked their motor vehicle in front of the Golf with
their lights on. Colonel Grobler and Captain
Jacobs alighted from
their motor vehicle, immediately identified themselves to the
occupants of the Golf as police officials. Colonel
Grobler also
produced and showed his police identification card. Colonel Grobler
directed the three occupants being two African
females and an African
male, to alight from the Golf. They were requested to lie down and
identify themselves. The two females
identified themselves as
Cassandra Ntuli and Patience Khumalo, being the plaintiffs in this
matter, and the African male identified
himself as Victor Tsotetsi
(Victor).
[21]
Victor told Colonel Grobler that he was kidnapped and that the two
females, being the plaintiffs,
formed part of the group of people
that kidnapped him. Colonel Grobler decided to arrest the plaintiffs.
In doing so, informed
the plaintiffs of their constitutional rights
and the reason for their arrest and asked them to provide him with
their version
to which they did not respond. Subsequent thereto, the
backup arrived and the plaintiffs were transported to the police
station.
Colonel Grobler then attended at the Lenz police
station to make his arresting statement as contained in the docket
under Case
Number 181/08/2016.
[22]
From Colonel Grobler’s testimony it can be ascertained that the
following information was
at his disposal when he made the arrest:
the identity of the motor vehicle which they were on the lookout for;
the identity
of the person who was reported to be kidnapped; the
identity of the kidnappers and the fact that the Golf was found in
Lenasia.
[23]
Colonel Grobler was informed during the briefing that the persons
suspected to have kidnapped
Victor were travelling in a two doors red
Golf heading for Lenasia, and they were also provided with the
registration number of
that Golf. The Golf they came across in
Lenasia had two doors, was red in colour and its registration number
matched the registration
number that was provided during the
briefing. The male person they found in the Golf identified
himself as Victor Tsotetsi,
which is the name they were given at the
briefing as the person who was kidnapped. Victor confirmed to Colonel
Grobler that he
was kidnapped and that the other two occupants of the
Golf were part of the group of persons who kidnapped him.
[24]
The question, therefore, is whether the above information,
objectively speaking, empowered Colonel
Grobler to arrest and further
detain the plaintiffs, as he did.
[25]
Counsel for the plaintiffs submits that the defence by the defendant
that the arrest was lawful,
falls to be dismissed and that the court
should declare the plaintiffs’ arrest and detention unlawful.
It is submitted on
behalf of the plaintiffs that regard being had to
Colonel Grobler’s own version, he did not exercise a reasonable
suspicion
based on the following grounds:
The objective facts,
did not evince any offence of kidnapping
[26]
The argument by the plaintiffs’ counsel is that on the reading
of Colonel Grobler’s
arresting statement coupled with his
evidence in court, his analysis of the objective facts did not evince
any offence of kidnapping.
[27]
The contention is that during cross-examination, Colonel Grobler
confirmed that in a kidnapping
case: the kidnapped person would be
restrained by some measure of duress. He confirmed that these are
elements of an offence of
kidnapping. He also conceded that, in
this case, Victor was not tied up or under duress; the plaintiffs
were unarmed; and
had no means of restricting Victor in any manner.
[28]
This evidence was further confirmed in his arresting statement,
wherein Colonel Grobler mentions
that the key elements in relation to
an offence of kidnapping were not present i.e. Victor was not tied
up, was not under duress,
the plaintiffs were unarmed and had no
means of restricting his movements. This, according to counsel, is a
clear indication that
on Colonel Grobler’s own analysis of the
objective facts, they did not evince any offence of kidnapping.
[29]
This argument by the plaintiffs’ counsel fails to take the
evidence tendered by Colonel
Grobler into account when he testified
as follows:
“
.
. . this is what I observed. And keeping in mind, and that is
why I wanted to, to answer the question previously –
but I was
interrupted is – this is what I observed and every time when I
observe in a kidnapping when we retrieve or recover
or find a victim,
the victim cannot be, does not need to be restrained in chains.
He does not need to be cuffed in, in handcuffs.
Who knows what
the kidnappers told him that they are going to do to the parents, for
example, if he runs away? So, and that
is what happened.
There is, it is not just a case that you are bound to a chair, you
are tied up and, because you are a victim
of kidnapping. You
can have free movement. It is not necessary for him to be harmed,
chained or even removed from his freedom
in totality. He can
move in this, in this room. He can move in a house. It
depends what the victim, what fear
the victim, or the, the kidnappers
bestow on the victim. That is why I mentioned this because I
did not observe these, these
aspects that I, that I wrote. Keep
in mind that, that is why I am saying, a victim, each victim must be
handled in his own
totality.”
[30]
Colonel Grobler’s evidence in this regard is correct. In the
South African law, kidnapping
is defined as “the unlawful,
intentional deprivation of a person’s freedom of movement”.
The two key elements
of kidnapping are the unlawful deprivation of
the freedom of the individual. The use of force or duress is not an
element of the
offence. That Colonel Grobler did not observe any
manner in which the plaintiffs restrained Victor’s freedom of
movement
does not mean that he did not entertain a suspicion that an
offence of kidnapping was committed or being committed.
[31]
The evidence of Colonel Grobler is that he decided to arrest the
plaintiffs based on the facts
at his disposal when he made the
arrest. He took into account that the Golf fit the description and
had the registration number
as conveyed to them during the briefing,
the prevailing circumstances and the fact that Victor identified
himself as the person
who was allegedly kidnapped as
per
the
information at hand and that Victor immediately pointed out the
plaintiffs as co-accomplices to the kidnap.
[32]
Colonel Grobler was also cross-examined with regards to the statement
made by the complainant
in the criminal matter (Victor’s
mother) and it was put to him that if he had knowledge of same he
would have realised that
the statement did not justify a complaint of
kidnapping.
[33]
I am in agreement with counsel for the defendant that the statement
of Victor’s mother
is inadmissible as it was not properly
tendered into evidence. Even if the statement would have been
admitted, its content would
have been irrelevant for the purpose of
determining whether Colonel Grobler acted reasonably in arresting the
plaintiffs. It is
trite that the information to be taken into account
should only be that which was within the knowledge of Colonel
Grobler, as the
arresting officer, immediately prior to the arrest.
No information obtained subsequent to the arrest or that is not
within the
knowledge of the arresting officer at the time of
effecting the arrest, should be considered. The enquiry here
should be,
objectively speaking, what information Colonel Grobler had
at his disposal when he made the arrest and did that information
objectively
speaking, empower him to arrest and further detain the
plaintiffs, as he did. In the final analysis the question ought
to
be, would a reasonable police officer with the same information
which was within the knowledge of Colonel Grobler at the time of
arrest, have arrested the plaintiff?
[34]
Therefore, the facts within the knowledge of Colonel Grobler at the
time when he made the arrest, justified
a suspicion that the offence
of kidnapping was committed or being committed.
The arrest was made on
strength of Victor’s report
[35]
The submission made in this regard is that on his own version as
per
the arresting statement together with the evidence he tendered in
court, Colonel Grobler did not have sufficient reasons to arrest
the
plaintiffs. The central issue on which the plaintiff’s counsel
focussed on during his cross-examination of Colonel Grobler
was that
the plaintiffs were at no stage afforded an opportunity to present
their version to the arresting officer. In support
of this assertion,
the plaintiffs’ counsel, with the aim of showing that the
decision to arrest was exercised unreasonably,
relied on the possible
improbability or unreliability of certain allegations, and
discrepancies in the arresting statement of Colonel
Grobler, which
indicated that on the reading of the arresting statement, nowhere was
it mentioned that he asked for an explanation
or response to the
allegations by Victor.
[36]
Counsel, further, relied on the concession made by Colonel Grobler
during his testimony that
on the reading of his statement, it appears
that he spoke to Victor who informed him that he was kidnapped by the
plaintiffs and
based on the report by Victor, he arrested the
plaintiffs. He then read them their rights in terms of the
Constitution and informed
them of the reason for their arrest which
was relayed in English, and they understood.
[37]
Counsel’s main complaint was that Colonel Grobler arrested the
plaintiffs on the strength
of a report from Victor that he was
kidnapped by the plaintiffs and that such a report on its own was not
enough to create a reasonable
suspicion which warranted the arrest of
the plaintiffs. It was then put to Colonel Grobler that under the
circumstances the arrest
was unlawful and that he (Colonel Grobler)
did not have sufficient reasons to arrest the plaintiffs and did not
have a reasonable
suspicion that the plaintiffs committed the offence
of kidnapping.
[38]
According to plaintiffs’ counsel, there is a duty on a police
officer before he can form
a reasonable suspicion to analyse and
assess the quality of the information at his disposal critically and
not accept it lightly
where it can be checked. Colonel Grobler was
enjoined to seek the plaintiffs’ version and investigate their
exculpatory version,
before forming a reasonable suspicion and
deciding to arrest, which he failed to do. What he did, afterwards,
does not cure the
failure, it is submitted.
[39]
The line of attack is misconceived. It must be kept in mind
that subsection 40 (1)
(b)
of the CPA does not require
certainty, the police officer need only harbour a suspicion of the
offence having been committed.
A suspicion inherently involves
an absence of certainty or adequate proof. A suspicion can be
reasonable despite there being
insufficient evidence for a
prima
facie
case. The arresting officer is entitled to consider all the
information, even based on hearsay, and does not have to be convinced
that there was in fact evidence proving the guilt of the arrestee
beyond reasonable doubt. It was, therefore, not expected of Colonel
Grobler to satisfy himself to the same extent as a court would.
[40]
Counsel seems to lose sight of the fact that when Victor made the
statement to Colonel Grobler,
Colonel Grobler already had the
information in his knowledge that he used to arrest the plaintiffs.
He had already identified the
two doors red Golf with the matching
registration numbers in Lenasia. He had already been given the name
of the person who was
kidnapped. Victor’s statement confirmed
the information that he already had, that he received at the
briefing.
[41]
I agree with the submission by the defendant’s counsel that the
plaintiffs’ counsel
is, in this regard, wrong. The fact that an
opportunity to give an explanation was not given to the plaintiffs is
not one of the
jurisdictional facts that must exist before the
arresting officer could effect an arrest. The failure to provide the
plaintiffs
an opportunity of explanation and to investigate their
exculpatory version is something that might come into play when
considering
whether the police officer properly exercised the
discretion to effect an arrest, but as far as the jurisdictional
facts to justify
an arrest are concerned, that is undoubtedly not one
of the requirements. An explanation from the suspect is not one of
the jurisdictional
facts to justify the arrest. Once the
jurisdictional factors are determined it is the end of the case.
[42]
Colonel Grobler’s evidence is that an opportunity was, indeed,
given to the plaintiffs
to put their version forward, but they opted
to remain silent. He testified that it must be borne in mind that in
effecting an
arrest, the suspect must be given the opportunity to
give an explanation, although that duty only arises after the
decision to
arrest is made and that, that is the basis for explaining
to a suspect his or her rights in terms of section 35 of the
Constitution.
In reply to a question from the bench Colonel Grobler
explained and confirmed that it is exactly what occurred in this
instance.
Colonel Grobler persisted that with all the information at
his disposal, which included the information conveyed during the
briefing,
the colour and registration number of the Golf, the
suspicious manner how the Golf was parked, the fact that Victor
identified
himself as the victim, corroborating their information and
Victor pointing out the plaintiffs as co-perpetrators in his
kidnapping,
he had a reasonable suspicion that the plaintiffs
committed a Schedule 1 offence and decided to arrest them.
[43]
On the reasons stated above, I am satisfied that Colonel Grobler was
armed with more than sufficient
information to form a reasonable
suspicion that the plaintiffs committed the offence of kidnapping.
The
Discretion was not exercised properly
[44]
It is trite that even if it is so that the arresting officer
entertained a reasonable suspicion,
the question that must follow is
whether the arresting officer exercised a discretion whether or not,
it was necessary to arrest
the plaintiffs.
[45]
It has been held that once the jurisdictional facts for an arrest
have been established, a discretion
arises. In other words, once the
required jurisdictional facts are present the discretion whether or
not to arrest arises. The
arresting officer, it should be emphasised,
is not obliged to effect an arrest.
[7]
The arresting officer has a discretion whether to arrest or not. It
is permissive and not peremptory or mandatory. This requires
the
arresting officer to weigh and consider the prevailing circumstances
and decide whether an arrest is necessary. No doubt this
is a
fact-specific enquiry.
[8]
[46]
In other words, the court should enquire whether in effecting an
arrest, the arresting officers
exercised their discretion at all. And
if they did, whether they exercised it properly cognisant of the
importance which the Constitution
attaches to the right to liberty
and one’s own dignity in our constitutional democracy, and that
the discretion conferred
in
section 40
(1) of the
Criminal Procedure
Act must
be exercised ‘in light of the Bill of Rights’.
[9]
The discretion must be exercised capriciously, rationally and not
arbitrarily.
[10]
[47]
In
Sekhoto
, the Supreme Court of Appeal decided that ‘the
general rule is also that a party who attacks the exercise of
discretion,
whether jurisdictional facts are present, bears the
onus
of proof. This is the position whether or not the right to freedom is
compromised.’ The
onus
, thus, was on the
plaintiffs to proof that the discretion was not exercised properly.
[48]
In the present case, it is submitted on behalf of the plaintiffs that
on the evidence before
court, it is clear that Colonel Grobler, when
he effected the arrests, failed to exercise a discretion. Even though
he confirmed
under cross examination that he exercised the
discretion, he, however failed to demonstrate how he exercised such
discretion.
[49]
This point by plaintiffs’ counsel, was buttressed by the
submission that on his own version,
Colonel Grobler did not exercise
a discretion because after he had spoken to Victor, he turned around
to the plaintiffs and read
them their rights and told them of the
reason of their arrest and asked that they be taken away. There is no
indication that he
considered other methods to secure the plaintiffs’
attendance at court.
[50]
The defendant’s counsel contended in argument that
if
Colonel Grobler exercised his discretion to arrest, then if the
plaintiffs want to attack that discretion, and intent to make
out a
case that the discretion was not exercised
bona
fide
,
the plaintiffs must allege same in the pleadings. This, however, has
been alleged.
[51]
The plaintiffs in paragraph 6 of the particulars of claim allege
that:-
“
6.2
The
arrest was made without any reasonable suspicion and/or grounds for
suspecting the Plaintiff of committing a Schedule 1 offence
in terms
of Act 51 of 1977;
alternatively,
the
arresting officer did not entertain an objectively sustainable
suspicion based on reasonable grounds that the Plaintiff had
committed a Schedule 1 offence.
6.3
Alternatively
to 6.2 above the arresting officer did not
exercise his discretion to arrest: in in good faith, rationally and
not arbitrarily;
. . . “
[52]
It is trite that an arrest is one of the methods of securing the
attendance of an accused before
court for the purpose of trial. The
decision to arrest must be based on the intention to bring the
arrested person to justice.
[53]
The legal position, as set out in
Sekhoto
,
[11]
is that police 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.
[54]
The court in
Sekhoto
went further to state the following:
”
[44]
. . .
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.”
[55]
I am in agreement with the proposition by the defendant’s
counsel that on the facts of
this case, the plaintiffs failed
to prove any facts or basis on which it can be
found that Colonel Grobler did not exercise his discretion to arrest
in good faith,
rationally and not arbitrarily. The evidence indicate
that Colonel Grobler appreciated that he had a discretion whether or
not
to arrest the plaintiffs without a warrant, this came out clearly
during cross examination. The
nature of the
offences of which the plaintiffs were suspected in this case, which
ordinarily attract heavy sentences of imprisonment
clearly justified
their arrest. The facts that were within the knowledge of Colonel
Grobler at the time of arrest are rationally
connected to his
decision to arrest the plaintiffs.
[56]
In the light of the information that was within his knowledge
together with Victor’s report
that he has been kidnapped,
Colonel Grobler was entitled to exercise his discretion in favour of
an arrest. He positively
identified the motor vehicle which it
was alleged the kidnappers were using, he finds the person who they
have been told has been
kidnapped inside that motor vehicle, the
person confirms his identity and that he has been kidnapped and
further points out the
plaintiffs as his kidnappers. Whether it
is Victor that confirms that he has been kidnapped or it is Thapelo
that arrives
there and confirms that Victor has been kidnapped, does
not really matter. The fact of the matter is, Victor is identified.
He is the person who according to the information that was conveyed
at the briefing, was kidnapped. He tells the policemen
that
these are the people that kidnapped me. For Colonel Grobler to have
exercised a discretion to arrest on those facts, does
not warrant the
criticism levelled against him. Besides no basis were laid for any
criticism against his decision to arrest.
On the totality of the
evidence
[57]
Counsel for the plaintiffs’ in argument submits that in order
for a court to decide whether
or not the defendant has discharged its
onus
,
the court must employ the often-employed test where a court is faced
with two mutually destructive versions as outlined by the
court in
the matter of
National
Employers General Insurance Co Ltd v Jagers.
[12]
Counsel contents that since the version proffered by Ms Khumalo as to
the events of that night contradicts that of Colonel
Grobler, the
court must on the totality of the evidence accept the version of Ms
Khumalo as the truth of what occurred.
[58]
I am more inclined to accept the suggestion by the defendant’s
counsel that it is not necessary
to delve into the question of the
credibility of the witnesses, for the simple reason that all the
important and material facts,
except for one issue, on the alleged
unlawfulness of the arrest of the plaintiffs, are based on common
cause facts.
[59]
The evidence of Ms Khumalo in rebuttal of the Defendant’s
version, is that on the day in
question, they were sitting with
Victor in the Golf whilst waiting for Xolani, the driver of the Golf
and another gentleman who
had gone to the garage to buy drinks. They
had stopped at the garage on their way to Lenasia police station
where Victor’s
mother had suggested that they meet. The Golf
was parked across the street from the garage with its back facing the
wall.
[60]
Whilst so sitting, they were approached by a number of police
officers who pointed them with
firearms and ordered them to get out
of the Golf and lie on the ground. The three alighted from the
Golf and lied down on
the ground. The police officers kicked them
(including Victor) around on the legs – spreading their legs.
[61]
A friend of Victor, Thapelo, arrived on the scene in the company of
Victor’s mother and
pointed out at Victor and informed the
police officers that Victor is the one they were looking for and that
he (Victor) was kidnapped.
Victor was surprised that it was said that
he has been kidnapped. Victor was asked to stand up and Colonel
Grobler moved with him
to the side and talked to him. Ms Khumalo
could not hear what they were talking about. The plaintiffs were then
ordered to stand
up and were taken in different motor vehicles to the
police station.
[62]
In essence counsel for the plaintiffs wants this court to accept the
plaintiffs evidence as regards
the fact that whilst the plaintiffs
were lying on the ground, Thapelo arrived and pointed out Victor as
the person who has been
kidnapped and that Victor expressed surprise
that he has been kidnapped; that the plaintiffs were not asked to
provide a version
in response to the allegations by Victor; they were
taken to the police station where they were arrested and detained
even though
the police officers there accepted that there was no case
against them.
[63]
To my mind, the evidence of Ms Khumalo, save that the plaintiffs were
not asked to provide a
version in response to the allegations by
Victor, corroborates the version of Colonel Grobler.
[64]
From the totality of the evidence tendered, it is evident that Victor
was identified as the person
who was kidnapped, either by Victor
himself or by Thapelo, as testified by Ms Khumalo. What is clear is
that at the time of arrest
Colonel Grobler was possessed of the
knowledge that Victor is the person who they were earlier briefed,
was kidnapped. The
evidence of Ms Khumalo also confirms that of
Colonel Grobler that the plaintiffs were travelling in a red Golf
with the registration
number that matched the one Colonel Grobler
received during the briefing and that the police officers found them
in Lenasia in
the company of Victor.
This claim stands to be
dismissed.
THE UNLAWFUL DETENTION
[65]
It is trite law that if an arrest is lawful the subsequent detention
is also rendered lawful.
It follows that if the arrest itself
is in fact lawful, as is the case here, then the detention,
per
se
, cannot be unlawful.
[66]
This is buttressed by the provisions of
section 39
(3) of the
Criminal Procedure Act which
stipulate that:
“
The
effect of an arrest shall be that the person arrested shall be in
lawful custody and that he shall be detained in custody until
he is
lawfully discharged or released from custody.”
[67]
It is common cause that, in this instance, the unlawfulness of the
detention would have flowed
from the alleged unlawful arrest.
The plaintiffs’ claims for unlawful detention is based on the
allegation in the particulars
of claim that they were not brought
before court within the statutory required 48
(forty-eight) hour period.
[68]
The allegation by the plaintiffs that they were not brought to court
within the period of 48
hours is unfounded and not true. The
objective facts before me is that they were brought to court within
the said period as extended
by the provisions of
section 50
(1) (c)
(ii) and (d) (i) of the CPA read with section 35 (1) (d) of the
Constitution.
[69]
In terms of the said sections,
any
person who is arrested and in detention
shall be brought
before a court as soon as reasonably possible, but not later than 48
hours after the arrest. If the period of 48
hours expires outside
ordinary court hours or on a day which is not an ordinary court day,
the accused shall be brought before
a court not later than the end of
the first court day after the expiry of the 48 hours.
[70]
Section 50 (1) (c) of the CPA and section 35 (1) (d) of the
Constitution provides that should
the period of 48 hours after the
arrest expire after ordinary court hours, the accused will be brought
before court on the following
day. The subsection also makes
particular provision for the situation where the 48-hour period
expires on a weekend.
In such an instance the person under
arrest should be brought before court on the Monday, subject thereto
that this is an ordinary
court day.
[71]
It is common cause that the plaintiffs were arrested on Wednesday
10 August 2016
at 21h30. The period of 48 hours started
running at that time and expired at 20h30 on Friday 12 August 2016.
The 48-hour period,
thus, expired after ordinary court hours. The
following day on which the police could have taken the plaintiffs to
court was a
Saturday which is not an ordinary court day. Therefore,
the first ordinary court day after the expiry of the 48 hours was on
Monday
15 August 2016. The plaintiffs were taken to court on
the said Monday hence, objectively speaking, they were taken to court
within the 48 hours. Therefore, to have brought the plaintiffs
to court only on Monday was lawful and within the ambit of
the
provisions of the
Criminal Procedure Act and
of the Constitution.
[72]
The contention by the plaintiff’s counsel, however, is that
even though the arrest of the
plaintiffs was found to be lawful,
their detention was still unlawful due to other grounds. Firstly, the
proposition is that the
detention is unlawful because the police
unreasonably failed to take the plaintiffs to court before the
expiration of the 48-hour
period.
[73]
According to counsel for the plaintiffs, even though section 50 (1)
of the CPA enjoins the police
to take the arrested person to court
not later than 48 hours after the arrest, there is no need for the
police to unreasonably
wait until the 48 hours have expired before
they take the arrested person to court. The contention is that
if there are no
reasonable reasons why the person arrested was not
taken to court within the 48-hour period, the detention is unlawful.
[74]
In this regard, the submission made by counsel is that in order to
give effect to the provisions
of section 50 (1) of the CPA, the
sub-section must be read and understood through the prism of the
Constitution. Counsel concedes
that the police have the power or
authority to detain, or are entitled to detain a suspect; but argues
that this court should take
the constitutional imperatives not to
deprive a person of freedom arbitrarily or without just cause, into
consideration, when implementing
the provisions of the sub-section.
Such imperatives, according to counsel, oblige the police to act with
haste and must not just
detain an arrested person and leave her/him
in the cells until the expiration of the 48-hour period. Where
it is possible,
counsel contends, the police must take reasonable
steps to ensure that the 48-hour period does not expire before an
arrested person
is brought before court. Like in this instance where
the plaintiffs were arrested on Wednesday evening and charged on
Thursday
evening, counsel contends that, unless there are reasonable
reasons, ideally the police should have taken the plaintiffs to court
at the very least by 16h00 on Friday and not wait for the 48-hour
period to expire, as they did.
[75]
The second ground is that the detention of the plaintiffs, from 9h00
on the morning of Monday
15 August 2016, which is the time when they
were released from the court cells, until 15h00 that day, when they
were released by
Investigating Officer Thipe, is unlawful.
[76]
The evidence of Ms Khumalo is that the plaintiffs were released from
the holding cell at 9h00
on the morning of Monday 15 August 2016. The
plaintiffs were released into the hands of Investigating Officer
Thipe who ordered
them to follow him to his motor vehicle and
instructed them to go into the said motor vehicle without providing
them any reasons
or informing them that the prosecutor refused to
enrol their case. Investigating Officer Thipe only released the
plaintiffs at
15h00 that date after having driven with them to
collect bribe money from Ms Ntuli’s sister.
[77]
The two grounds on which the plaintiffs contend render their
detention unlawful are in my view,
totally separate and new causes of
action which should have been specifically pleaded. The
onus
to proof that the lawful detention for some reason became unlawful
falls on the plaintiffs. Having failed to plead the said
causes
of action, in my opinion, amounts to trial by ambush!
It
is a well-known fact that the purpose of pleadings is to define the
issues for the other party and the court and it is for the
court to
adjudicate upon the disputes and those disputes alone.
[13]
[78]
In
Minister
of Safety and Security v Slabbert
,
[14]
the Supreme Court of Appeal held that:
“
Party
has a duty to allege in the pleadings the material facts upon which
it relies, it is impermissible for the plaintiff to plead
a
particular case and seek to establish a different case ….
It is equally not permissible for the trial court to have
recourse to
issues falling outside the pleadings when deciding the case.”
[79]
If the plaintiff’s case is that the lawful detention resulting
from the lawful arrest by
Colonel Grobler, became unlawful for some
reason, they had the
onus
to plead according to those facts,
but plaintiffs failed to do so. There is not a single allegation in
the particulars of claim
to the effect that the police were supposed
to take the plaintiffs to court before the expiry of 48 hours after
they were arrested;
or that the unlawful detention continued even
after the plaintiffs were released from the holding cells when the
prosecutor refused
to enrol their matter; or that the plaintiffs
were, after the release from the holding cells, again arrested and or
detained; or
that the investigating officer or any other member of
SAPS acted unlawfully in that regard.
[80]
I agree with the defendant’s submission that where the police
acted unlawfully after the
unlawful arrest, any harm resulting from
having acted unlawfully is not caused by the unlawful arrest but is
caused by that unlawful
conduct. Just as any unlawful conduct by the
police after a lawful arrest would not constitute an unlawful
detention. Therefore,
an unlawful detention, if any, will have
been occasioned by the conduct of the police which occurred after the
lawful arrest; and
such conduct should have been pleaded as a new and
separate cause of action.
[81]
The plaintiffs’ claim for unlawful detention would have flowed
from the alleged unlawful
arrest. Having found that the arrest was
lawful and the plaintiffs having not pleaded the other grounds to
establish the unlawfulness
of the detention, their claim for unlawful
detention ought to fail, as well.
COSTS
[82]
Both parties prayed for costs in the event that they are successful
and contended that such costs
should include costs of two counsel. On
a question from the bench whether it was necessary that the parties
should have employed
the services of two counsel in this ordinary run
of the mill case of unlawful arrest and detention, I was given two
reasons why
it was necessary. Firstly, I was informed that the
question of the post detention that was anticipated to come, is
something that
may be not trite in our law and has not been
previously dealt with by our courts, hence the employment of two
counsel in that regard
was necessary. Secondly, because both parties
employed two counsel.
[83]
As is trite the question of whether to award costs and which costs
ought to be awarded, is within
the discretion of the court. Having
determined the issues and made my findings, I do not think this is a
case that required the
employment of two counsel.
[84]
As I have already indicated, this is an ordinary run of the mill case
of unlawful arrest and
detention. Costs of two counsel should not be
allowed.
ORDER
[85]
Consequently, the following order is made:
1.
The plaintiffs’ claims for unlawful arrest
and detention are dismissed.
2.
The plaintiffs are ordered to pay costs of suit
jointly and severally, the one paying the other to be absolved.
E.M
KUBUSHI
JUDGE
OF THE HIGH COURT,
GAUTENG DIVISION,
PRETORIA
Appearance:
Plaintiff’s
Counsel
:
Adv. D. Mtsweni
Plaintiff’s
Attorneys
:
Gildenhuys Malatji Incorporated
Defendant’s
Counsel
: Adv. M M M Van Zyl SC
Defendant’s
Attorneys
:
State Attorney, Pretoria
Date of
hearing
: 23-30 November 2020
Date of
judgment
: 10 March 2021
[1]
Law
of Evidence Amendment Act 45 of 1988
.
[2]
Civil
Proceedings Evidence Act 25 of 1965.
[3]
The
Minister of Safety and Security v Sekhoto
2011
(5) SA 367
(SCA).
[4]
Duncan
v Minister of Law and Order
1986
(2) SA 805
(A) at 818G – H.
[5]
Mvu
v Minister of Safety and Security
2009
(2) SACR 291 (GSJ).
[6]
Minister
of Safety and Security and Another v Swart
2012
(2) SACR 266
(SCA) para 20.
[7]
Minister
of Safety and Security v Sekhoto and Another
2011
(1) SACR 315
(SCA) para 28.
[8]
Raduvha
v Minister of Safety and Security and Another
(2016)
ZACC 24
para 42.
[9]
Raduvha
case
para
44.
[10]
Sekhoto
case
para 38
[11]
Sekhoto
case
para 39.
[12]
National
Employers General Insurance Co Ltd v Jagers
1984
(4) SA 437
(E) at 44D – H.
[13]
Mahlangu
and Another v Minister of Police
2020
(2) SACR 136
(SCA) para 26.
[14]
Minister
of Safety and Security v Slabbert
[2010]
2 All SA 474
(SCA) para 11.