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[2021] ZAGPPHC 236
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Ramasila v Minister of Police (2671/2018) [2021] ZAGPPHC 236 (19 April 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
PROVINCIAL DIVISION, PRETORIA
CASE
NO: 2671/2018
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
REVISED
Date:
19 March 2021
In
the matter between:
TSHEPO
INNOCENT
RAMASILA
PLAINTIFF
And
MINISTER
OF
POLICE
DEFENDANT
JUDGMENT
NYATHI
AJ
INTRODUCTION
[1]
The
plaintiff has instituted action claiming damages from the Minister of
Police in respect of unlawful arrest, detention and assault
which
took place on the 21st of August 2017 at Bolobedu Police Station in
Limpopo Province. By the agreement of the parties, merits
and quantum
are separated and I am called upon to determine the issue of
liability on merits.
[2]
The defendant resists all the claims and assumed the duty to
begin and justify the arrest and detention as lawful and disprove the
arrest. the defendant contends that the plaintiff’s arrest
without a warrant and his detention were lawful in that he committed
a Schedule 1 offence, i.e., malicious damage to property and that the
arresting officer reasonably exercised his discretion in
arresting
the plaintiff. The defendant consequently relied on section 40 (1)(b)
of the Criminal Procedure Act 51 of 1977 ("CPA")
to justify
the lawfulness of the arrest.
[3]
The
relevant parts of section 40 of the CPA provides as follows: "Arrest
by peace officer without warrant (1) A peace officer
may without a
warrant arrest any person ... whom he reasonably suspects of having
committed an offence referred to in schedule
1 ..."
[4]
The
defendant called only one witness, Sergeant Mapudi Moses Rakoma, the
arresting officer. He was investigating a case of Malicious
Injury to
Property wherein a Toyota Tazz motor vehicle belonging to a
complainant had been set alight. He went to a local taxi
rank having
in his possession a list of names of the potential suspects. When he
did not find them, he left a note for them at
the rank with the
instruction that they must report at the police station. The suspects
among whom was the plaintiff duly complied
and arrived at the police
station sometime later.
[5]
It was at that time when the plaintiff was arrested and detained
in the police cells. He was confronted with the accusations that
he
had been one of the perpetrators who had torched the complainant's
motor vehicle. When he denied any involvement, he was slapped
across
the face by one of the police officers in attendance.
[6]
The plaintiff knew the complainant in the case very well in
that they were working together in the Maxi-taxi business.
[7]
Sergeant Rakoma testified that he had relied on the complainant's
statement to effect the arrest on the plaintiff. The complainant
alleged that he had seen the perpetrators setting his car on fire
from a vantage point where he had hidden after coming under attack.
[8]
It is worth noting at this point that the complainant's statement
had not been discovered as part of the trial bundle and so did
not
form part of the evidence before me. This much was conceded by Mr
Maloma, counsel for the defendant.
[9]
The plaintiff' s version is common cause with the defence version
save for the circumstances around the alleged assault. The plaintiff
avers that when confronted by the officers about his alleged
involvement in the crime, he had told Sergeant Rakoma that he had
been in hospital at the time and was as a result not involved. Rakoma
did not believe him and accused him of lying and slapped
him across
the face.
[10]
Under cross- examination by counsel for the applicant Mr JSC
Nkosi, Sergeant Rakoma denied the assault. He testified that the
plaintiff
was released on bail of R1000 after 2hours and that the
case was ultimately withdrawn. He was not able to explain
circumstances
under which he as a peace officer could arrest a
suspect without a warrant. And reiterated that he only arrested the
plaintiff
on the strength of the allegations made by the complainant.
[11]
The plaintiff testified about his visit to hospital and how he
later got a letter at the taxi rank which made him to go to the
police
station. He confirmed that he got arrested, slapped across the
face, and got detained in circumstances already alluded to above.
He
attended court in respect of the criminal matter until it was
withdrawn after about 4 court appearances.
THE
LAW REGARDING UNLAWFUL ARREST
[12]
In
Motsei
v of Police,· In re: Phefadu v Miniinister of Police
[1]
the court remarked on the provisions of section 40 and schedule 1 as
follows:
“
The liberty of
an individual is constitutionally enshrined in the right of freedom
and security
section
12
of
the
Constitution
of
the
Republic
of South
Africa
Act
108
of
1996.
This
point
was
restated
by
Bertelsman
J
in
Louw
v
Minister
of
Safety and
Security
2006(2)
SACR
178(T)
186a- 187e
that
an
arrest
is
a drastic
measure
invading
a
personal
liberty
and
it must be
justifiable according to the
demands
of the Bill of Rights..."
"
[P]olice
are
obliged
to
consider,
in
each
case
when
a
charge
has
been
laid for
which
a
suspect
might
be
arrested,
whether
there
are
no
less
invasive options to bring the suspect before the court
than
an
immediate detention
of
the
person
concerned."The
Constitution does
not
espouse a
dispensation
of arbitrary deprivation of
freedom of
movement and security. The
court
authoritatively
cited
the
case
of
Mhaga
v
Minister
of
Safety
and
Security
2001(2) All SA
534
(TK),
where the
court held
that
in
a case where
a
police
officer had
arrested and
detained a person, once
the
arrest
and
detention
is
admitted,
the
onus
of
proving
the lawfulness thereof rests on the
State."
[13]
Section
40 (1) (b) provides that a peace officer may without a warrant arrest
any person suspected of having committed an offence
referred to in
schedule 1. In
Duncan
v Minister of Law and Order
[2]
The courts have established that there are
four
jurisdictional
facts
that
must exist before such power can lawfully be exercised, namely:
(a)
the arrestor must be a peace officer;
(b)
the peace officer must entertain a suspicion;
(c)
it must be a suspicion that the arrestee has committed
a schedule 1
offence;
(d)
the suspicion must rest on reasonable grounds;
ANA
LYSIS AND CONCLUSION.
[14]
Section
40 (1) of the CPA states that a peace officer "may" and not
"must" or "shall " arrest without
a warrant any
person who commits or is reasonably suspected of having committed any
of the offences specified therein . In its
ordinary grammatical use,
the word "may" suggest that police officers have a
discretion whether to arrest or not. It
is permissive and not
peremptory or mandatory. This requires police officers to weigh and
consider the prevailing circumstances
and decide whether an arrest is
necessary
[3]
[15]
In this case the plaintiff and the other arrestees went to the
police station of their own accord. They obviously did not have any
inclination to flee the law to warrant incarceration when they
presented themselves.
[16]
The "suspicion" which Sergeant Rakoma entertained in his
decision to arrest was founded solely on the complainant's A1
statement which was not used as evidence. This clearly is not
reasonable and indicates that the arrestor did not exercise the
requisite discretion. To compound matters, the case was not proceeded
with in court.
[17]
In
Gellman
v Minister of Safety and Security
[4]
it was held that if no exigent circumstances exist, the arresting
officers should preferably seek corroborative evidence before
making
an arrest. An arrest is not a substitute for good police work. In the
current case there is not a shred of corroborative
material that was
relied upon to effect the arrest and detention complained of.
[18]
In the circumstances I find that, even if there were reasonable
grounds for suspecting the plaintiff of committing a Schedule
1
offence, Sergeant Rakoma did not exercise his discretion properly
when he chose to arrest the plaintiff without a warrant. There
was no
exigency that existed to warrant an arrest then and there at the
police station. He could have asked the plaintiff to attend
court on
a given date or took his time to procure a summons and serve same to
the plaintiff.
[19]
I therefore conclude that the arrest, detention , and assault of the
plaintiff was unlawful.
The plaintiff's claim
succeeds on the merits and the defendant is ordered to pay the
plaintiff's costs.
J.S.
NYATHI
Acting
Judge of the High Court
Gauteng
Division, Pretoria
Date
of Judgment: 19 April 2021
On behalf of the
Plaintiff: Adv JSC Nkosi
Instructed by: MWIM
Attorneys
304,
308 and 309 Van Erkom Building
217 Pretorius street
Pretoria
Tel:
(012) 323 1004)
Fax: (086) 602 3697
Email
:
info@mwimattorneys.co.za
Ref: MWIM/ Ramasila/
EDEH/ ULA0017
On
behalf of the Defendant: Adv Maloma
Instructed
by: The State Attorney Pretoria
316 Thabo Sehume Street
SALU Building
Tel:
(012) 309 1547
Email:
Escharf@justice.gov.za
Ref:
315/2018/Z72
[1]
[2014] ZAGPPHC 567 (23 May 2014)
[2]
1986 (2) SA 805
(A) at 818 F-H
[3]
Raduvha v Minister of Safety and Security and Another
2016 (2) SACR
540
(CC)
[4]
[2007] ZAGPHC 269
;
2008 (1) SACR 446
(W)