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[2020] ZALMPPHC 33
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Brits v Minister of Police and Another (HCA11/2019) [2020] ZALMPPHC 33 (5 June 2020)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
LIMPOPO DIVISION, POLOKWANE
(1)
REPORTABLE:
YES
(2)
OF
INTEREST TO OTHER JUDGES: YES
(3)
REVISED:
YES
CASE NO: HCA11/2019
5/6/2020
In the matter between:
BRITS,
CHRISTIAN
APPELLANT
And
MINISTER
OF
POLICE
1
ST
RESPONDENT
COL.
ESPACH,
JAMES
2
ND
RESPONDENT
JUDGMENT
MUDAU, J:
[1]
This appeal is about a delictual damages claim resulting from an
alleged unlawful
arrest and detention. The appellant instituted a
delictual claim against the respondents in the magistrate's court for
the district
of Letaba, Tzaneen. The appellant sued the first
respondent based on being vicariously liable for the second
respondent, Colonel
Espach's alleged unlawful conduct. The magistrate
subsequently dismissed the claim with costs. The appellant is
aggrieved with
this outcome, hence the appeal. After an agreement
with counsel, this appeal was disposed of on papers without further
oral submissions
in open court, pursuant to section 19 (a) of the
Superior Courts Act
[1]
.
[2]
The arrest without warrant and
subsequent detention of the appellant is not in issue. What is in
issue, is the alleged unlawfulness
thereof as well as the question of
quantum of damages. The respondents' pleaded case is that the arrest
and detention was lawful,
as the appellant was arrested for
'possession of suspected stolen property'. Furthermore, that the
appellant's scale and cell phone
were taken as exhibits. In addition,
the criminal charges 'were provisionally withdrawn' to allow for the
re-arrest of a co-accused
who absconded whilst out on bail. It is
common cause between the parties that the appellant and two others,
appeared before the
magistrate's court on a charge of possession of
29.9 KG of copper allegedly stolen in apparent contravention of
section 36 of Act
62 of 1955. The state, on a subsequent occasion
withdrew the charges provisionally.
[3]
The authority of a police officer in his
or her capacity as a peace officer to arrest a person without a
warrant is permissible
as set out in section 40 of the Criminal
Procedure Act
[2]
(the CPA). In our law, it is trite that an arrest and detention of
any person is
prima facie
wrongful.
The wrongfulness of an arrest and detention lies in the wrongful
depravation of a person's liberty. Once arrest and detention
are
admitted however, the onus is on the defendant, in this case the
respondents, to prove that the arrest and the subsequent detention
were lawful.
[3]
[4]
The corollary is that if the arrest is
unlawful, then the subsequent detention is also unlawful. The Bill of
Rights in our Constitution
guarantees every person the right,
inter
alia,
not to be deprived of freedom
arbitrarily or without just cause.
[4]
Accordingly, the right to dignity, freedom and security of the person
are primary values of the Constitution and any arrest and
detention
of a person amounts to a
prima facie
infringement of these rights.
[5]
All that is required of a peace officer effecting an arrest without a
warrant is a reasonable suspicion objectively considered,
that a
Schedule 1 offence has been committed.
[6]
As De Vos J held in
Ralekwa v
Minister of Safety and Security
[7]
:
"[10] Arrest
without a warrant is the most oppressive means of initiating a
prosecution. Although it has been pointed out that
personal freedom
is
a
right
which has always been jealously guarded by our Courts, in general, it
can be said that the enquiry into the lawfulness of
a warrantless
arrest tends to end once the preconditions for the exercise of the
power, namely the jurisdictional facts, have been
found to exist."
[5]
The facts that gave rise to the
appellant's claim, broadly stated, are as follows. The appellant
testified that, as at the time
of his arrest at about 12 midday on 4
July 2014, he was the owner of a scrapyard business. He received an
SMS message from a former
employee, Dube (accused 3 in the criminal
charges) asking him [appellant] to call him [Dube] back, which he
ignored. He later received
another SMS message from Dube saying that
he has copper that he wanted to sell. He directed Dube to go to his
scrapyard where these
kinds of transactions were conducted.
[6]
Later he received a phone call from his
scrapyard manager, Michael (accused 2 in the criminal charges) saying
that the police were
there and that he must come to the scrapyard.
Upon his arrival he learned from the second respondent, Colonel
Espach, that Michael,
who at that stage was behind the counter, was
buying stolen copper. He knew who had brought the copper because of
the earlier conversation
he had with his manager. He volunteered to
show the police where Dube could be found at a certain address. He
also showed the police
the SMS messages exchanged with Dube on his
cell phone that was subsequently confiscated. He and Michael were
arrested, put into
the back of the van and taken to the police
station, which experience he found to be traumatic and frightening.
He remained in
detention until about 1 PM the next day (5 July 2014)
when he was released on police bail fixed at R100-00.
[7]
The appellant confirmed in his evidence
in chief that metal scrap dealers were regulated by law in relation
to the sale and purchase
of second-hand goods, in apparent reference
to the Second-Hand Goods Act.
[8]
The law prescribes that all scrap metal dealers engaged in recycling
of any controlled metals be registered and keep a register
that
contains the details of the seller, a description of the product
sold, as well as the price involved in the object of sale.
According
to the appellant, once the metal is brought to the shop, the process
entails separating and sorting it out. Once this
is done,
"the
metal is then weighed, written up in the register, the price
calculated, the ID document would be photocopied, and then
the person
leaves with his money".
[8]
During cross-examination , the appellant
was constrained to concede that he checked the trolley, arid that
there was copper that
was probably stolen. As to the question whether
he had no suspicion that he was dealing in stolen copper he responded
thus:
" No, well you always have
to suspect that is why you have to go to the shop
so
that it can be inspected and weighed
and booked...."
He was also
constrained to concede that the criminal charges against him and his
co-accused were provisionally withdrawn.
[9]
The scrapyard shop manager, Michael
Mashapu (Michael), testified in support of the appellant briefly as
follows. Contrary to the
testimony of the appellant, they did not
deal with copper as instructed by the appellant at the scrapyard but
with aluminium, radiators
as well as stainless steel metal sheets. He
confirmed that the process entailed first, the nature of the goods
brought by the customer
and then sorting out the kind of metals
brought, after that, the metal is then measured on the scale and the
weight is recorded.
It was his evidence that the second respondent
arrived in the shop at the point when Dube, who was in the company of
two others,
had opened his bag, before he and another shop assistant,
an elderly woman whose responsibility it was to sort out the items,
could
look at the contents of the bag. The contents had not been
weighed and possession not passed. Dube and his companions thereafter
ran away from the scene.
[10]
Colonel Espach testified in defence of the claim briefly as follows.
He was at the petrol station at
about 9 AM on 4 July 2014 when he saw
two men carrying a heavy bag. They were struggling to carry it. The
two men were coming from
the direction of some smallholdings in the
area. The area was beset with the theft of copper cables, borehole
shafts and transformers.
A third man, whom he later came to know as
Dube approached the two men. Dube was pushing a shopping trolley. The
two men put the
bag inside the trolley. He held a suspicion that the
men were all involved in the theft of infrastructure materials in
that area
and called for police backup. He followed them to the
appellant's scrapyard shop. He noticed the two shop attendants, a man
and
a woman, exchanging greetings with the three men. He subsequently
came to know the male shop attendant later as Michael, the
appellant's
support witness. From a clear view, he noticed the two
shop attendants placing the heavy bag that was brought by the three
men
on top of a scale.
[11]
The police backup team, under Colonel
Usiba, that he had requested was taking long. As the transaction was
going on, he feared that
they might leave the premises. He went
inside the shop, produced his appointment card and ordered everyone
to standstill after
introducing himself. The two men whom he first
saw carrying the heavy bag, pushed him out of the way. He grabbed one
of them, but
Dube loosened his grip to help the man escape. He tried
chasing the two men, "the runners" but to no avail. He
returned
to the shop and ordered everyone to remain inside until
backup arrived. In the meantime, he noticed that the bags contained
cables
that were cut in pieces, the same bags that he initially saw
loaded on the trolley and later placed on the scale. Michael then
phoned the appellant who arrived shortly thereafter.
[12]
Upon the appellant's arrival, he
requested to see his cell phone. From the cell phone SMS exchanges
that the appellant had with
Dube, he discovered that the appellant
was directly involved with the sale of the copper cables. In the SMS
exchanges, the appellant
had inquired how much the weight of the
copper was. The response was, it was approximately 20 KG. The
appellant asked the person
with whom he was communicating (Dube) to
take it to the shop. The copper was measured and found to be 29.8 kg
in the appellant's
shop. He also testified that it is illegal to buy
unprocessed copper cables that were cut and burnt. The appellant and
Michael
were placed under arrest. The scale that was used to measure
the quantity of the copper was confiscated as well as the appellant's
cell phone.
[13]
He confirmed that Dube was later
arrested with the help of the appellant, after disappearing from the
scene. However, Dube later
absconded whilst out on bail. A warrant
for Dube's arrest was issued on 12 September 2014. During
cross-examination, he testified
that he followed the three men to
establish who that person was, creating a market for the stolen goods
to be sold which led him
to the appellant's shop.
[14]
Colonel Usiba, a police veteran with 32
years of service, testified and confirmed that at the scrap metal
dealership, a man allegedly
involved in the illicit trade, Dube and a
mealie bag that contained copper cables were pointed out to him.
Shortly thereafter,
the appellant arrived. He further confirmed in
his testimony that the SMS message between the appellant and the
sender was in relation
to the copper cables that the appellant asked
the sender to bring. During cross-examination however, Col Usiba
could not confirm
whether there was another black bag that contained
cables inside the shop. He maintained that it was illegal for the
shop to deal
with stolen goods. The copper was evidently stolen as
the cables were clearly burnt and their covers removed.
[15]
The investigating officer in the
criminal case, Rasesebotsa, testified and confirmed that the matter
was not yet finalized, but
pending in the magistrate's court.
Furthermore, that on the facts, the appellant and his co-accused were
properly charged. The
appellant, upon investigation could not show
him that he was legally in possession of the stolen copper.
[16]
The appellant contended that his arrest
under these circumstances was unreasonable. The appeal turns on
whether the arresting officer
harboured a reasonable suspicion that
the appellant committed the alleged offence. In
Minister
of Safety and Security v Sekhoto
[9]
the following is said:
" [6] As was held in
Duncan v Minister of Law and Order
(1986
2 SA 805
(A) at
81BG HJ, the jurisdictional facts for as 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."
[17] In
order to combat theft, the legislature created the crimes in sections
36 and 37 of the General Law
Amendment Act
[10]
to address the question of stolen goods or goods suspected to be
stolen. Section 36 provides that:
'
Failure to give
a
satisfactory
account of possession of goods
-
Any person who
is
found in
possession of any goods ... in regard to which there
is
reasonable
suspicion that they have been stolen and is unable to give
a
satisfactory
account of such possession, shall be guilty of an offence and liable
on conviction to the penalties which may be imposed
on a conviction
of theft.'
In
this case, the charges that the appellant and his co-accused faced
included receiving stolen property, the copper, which is a
Schedule 1
offence.
[18]
In terms of section 40 (1) (e) of the
CPA a peace officer may without warrant arrest any person "
who
is found in
possession
of
anything which the peace officer reasonably suspects to be stolen
property or property dishonestly obtained, and whom the peace
officer
reasonably suspects of having committed an offence with respect to
such thing."
It follows
accordingly that a person found in possession of property reasonably
suspected to have been stolen or acquired by dishonest
means, can be
arrested without warrant if the peace officer reasonably suspects the
person to have committed an offence in connection
with the property.
The jurisdictional requirements are the same as referred to in
section 40 (1) (a) as held in
Duncan
v Minister of Law and Order.
[11]
The jurisdictional facts that have
to be proved by a defendant who relies on s 40(1)(e) as a defence are
also the following:
[12]
(a)
The arrestor must be a peace
officer.
(b)
The suspect must be found in
possession of property.
(c)
The arrestor must entertain a
suspicion that the property has been stolen or illegally obtained.
(d)
The arrestor must entertain a
suspicion that the person found in
possession
of the property has committed an offence in respect of the property.
(e)
The arrestor's suspicion must
rest on reasonable grounds.
[19]
In
Mabona
and Another v Minister of Law and Order and Others
[13]
Jones J, on the issue of reasonable
suspicion, held:
"
The test of whether
a
suspicion is reasonably entertained within the meaning of
s
40
(1) (b) is objective
(S
v Ne/ and Another
1980 (4)
SA
28
(E) at 33H). Would a reasonable man in the second defendant's
position and
possessed
of the
same
information have
considered that there were good and sufficient grounds for suspecting
that the plaintiffs were guilty of conspiracy
to commit robbery or
possession of stolen property knowing it to have been stolen? 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, ie 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 not certainty. However, the suspicion must be
based upon solid grounds. Otherwise,
it will be flighty or arbitrary,
and not
a
reasonable suspicion."
[20]
For the proper determination of section
40 (1) (e), property can be found in the possession of a suspect even
though he or she is
not present when it is found.
[14]
For a proper interpretation of section 36 of the General Law
Amendment Act, a person can be found 'in possession of property'
without being present when the property is found. According to
Snyman
[15]
,
"possession consists of two
elements, namely
a
physical
or corporeal element (corpus detentio) and a mental element (animus
that is the intention of the
possessor).
The physical element consists in an
appropriate degree of physical control over the thing. The precise
degree of control required
depends upon the nature of the article and
the way in which control
is
ordinary
exercise of such
a
type
of article. The controller may be actual or constructive.
Constructive control means control through somebody else, such as
a
representative or servant. The animus
element of
possession
relates
to the intention with which somebody exercises control over an
article, and differs according to the type of
possession.
"
[21]
Counsel for the appellant, Mr Zietsman
contended in his heads of argument that
"no
transaction was concluded,
as
appellant would obviously at the shop
view, consider decide whether to purchase items or nor .
This
contention is without basis. The appellant from the SMS conversation
with Dube had already established what the contents of
the bag were.
As indicated above, what remained was the measurement of the copper
that had to be weighed followed by payment. On
the probabilities,
Michael would not have started the process of measurement, before the
contents of the bag were ascertained.
The measurement of the copper
presupposed an important end-stage, receipt of the copper on behalf
of the shop. Colonel Espach intervened
at the stage when the copper
was weighed, consistent with the laid down procedure in the shop.
What remained was payment for the
copper to the sellers and for the
relevant details to be entered in the register.
[22]
Objectively considered, the arresting
police officer in this matter had reasonable grounds for his
suspicion and exercised his discretion
accordingly. His suspicion
that the appellant was involved in the sale of illicit copper was
completely justified by the peculiar
circumstances. In this case, the
appellant, on his version, told a former employee to deliver copper
to his shop. On his version,
the appellant suspected that the copper
was stolen.
[23]
Prima facie,
the
appellant exercised constructive control of the copper through his
employee, Michael. That the copper was stolen is fortified
by the
fact that those who brought it, including the former employee, Dube,
are at large, which gave rise to the authorization
of a warrant of
arrest and the temporary withdrawal of the charges. As to the
withdrawal of the charges, the onus was on the appellant
to show, on
a balance of probabilities, that there are no pending proceedings, or
no likelihood of proceedings being reinstated.
[16]
He failed on that score.
[24]
I am of the view that these
jurisdictional facts were present when the appellant was arrested. As
pointed out in
Duncan
[17]
,
the grounds upon which an exercise
of a discretion can be questioned are narrowly circumscribed. Members
of the South African police
are enjoined by law to combat and detect
crimes, which include ensuring the security of property. The
discretion by the second
respondent in these circumstances was not
only justifiable, but also properly exercised. It follows,
accordingly, that the appeal
stands to be dismissed as it is without
merit. Costs should follow the result.
[25]
Order:
23.1 The
appeal is dismissed with costs.
TP
MUDAU
(Judge
of the High Court,
Limpopo
Division,
Polokwane]
I agree .
MAKGOBA
JP
JUDGE
PRESIDENT OF THE LIMPOPO
DIVISION
OF THE HIGH COURT
Date
of Judgment:
5 June 2020
APPEARANCES
For
the Appellant:
Adv. C Zietman
Instructed
by:
Jan Ellis Attorneys
For
the 1
st
Respondent:
And
The
2
nd
Respondent:
Adv. M.E Ngoetjana
Instructed
by:
State Attorneys
[1]
10 of 2013
[2]
51 of 1977
[3]
Brand v Minister of Justice
&
another
1959 (4) SA
712
(A) at 714G-H
[4]
Section 12 (1) (a) of the Constitution of the Republic of South
Africa, 1996
[5]
Minister of Safety and Security v Slabbert
(2010) 2 All SA
474
(SCA)
[6]
Duncan v Minister of Law and Order
1986(2) SA 805 (A)
[7]
2004 (1) SACR 131 (T)
[8]
6 of 2009
[9]
2011(1) SACR 315 (SCA)
[10]
62 of 1955
[11]
Fn 5 above
[12]
Setlhapelo v Minister of Police
2015 JDR 0952 (GP);
Swalivha
v Minister of Safety and Security
(32477109) [2011) ZAGPPHC 32
(17 March 2011
); Mdlalose and Another v Minister of Police and
Another
[2016) 4 ALL SA 950 (WCC)
[13]
1988 (2) SA 654
(SE) at 658 E-H
[14]
S v Wilson
1962 (2)
1962 SA 619
(A) at 624E- F
[15]
CR Snyman, Criminal Law, 5th ed at pgs 429-430
[16]
Van der Merwe
&
another v Taylor NO
&
Others
2008 (1) SA 1
CC at para 51; see also
Minister of Police v
Stanfield
2020 (1) SACR 339
(SCA) para 12.
[17]
Fn 6 above at 818 I.