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[2017] ZASCA 103
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Minister of Safety and Security v Magagula (991/2016) [2017] ZASCA 103 (6 September 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
NOT
REPORTABLE
Case
No: 991/2016
In
the matter between:
MINISTER
OF SAFETY AND
SECURITY
APPELLANT
and
SIPHO OWEN
MAGAGULA
RESPONDENT
Neutral
citation:
Minister
of Safety and Security v Magagula
(991/2016)
[2017] ZASCA 103 (6 September 2017)
Coram:
Lewis, Petse and
Swain JJA and Lamont and Fourie AJJA
Heard:
18 August 2017
Delivered:
6
September 2017
Summary:
Criminal Law and procedure —
damages — Unlawful arrest and detention — appeal against
judgment awarding damages
for unlawful arrest and detention of the
respondent — whether or not the appellant’s servant had
the requisite suspicion
to arrest and detain the respondent —
periods of detention before and after first appearance in court to be
separately considered
— claim for detention after first
appearance neither pleaded nor established — appeal upheld.
ORDER
On
appeal from
:
Gauteng Division of the High Court,
Pretoria (Modiba AJ, Msimeki J and Olivier AJ sitting as court of
appeal):
1 The appeal succeeds
with costs, including the costs of two counsel.
2 The order of the court
a quo is set aside and is substituted with the following:
‛
1 The appeal
fails; the cross-appeal succeeds.
2 The plaintiff is to pay
the costs of the appeal and the cross-appeal.
3 The order of the trial
court is set aside and is substituted with the following:
“
The plaintiff’s
action is dismissed with costs.”
’
JUDGMENT
Lamont
AJA (Lewis, Petse and Swain JJA and Fourie AJA concurring)
[1]
The respondent (plaintiff) instituted action against the appellant
claiming payment of damages on the basis that he had been
unlawfully
arrested and unlawfully detained. The trial court (Zondo J) awarded
the respondent damages arising from his unlawful
arrest and his
unlawful detention for the period from the time of his arrest up
until the time of his first appearance in court.
The parties both
sought and were granted leave to appeal against the order of the
trial court. The Gauteng Division of the High
Court, Pretoria,
sitting as a full court of appeal (Modiba AJ, Msimeki J and Olivier
AJ concurring), confirmed the award for damages
for unlawful arrest
and awarded the respondent damages for the entire period of his
detention, namely from the time of his arrest
up until the time of
his release after the charges were withdrawn against him. The
appellant appeals against the decision of the
court a quo, special
leave to appeal having been granted by this court.
[2]
On 15 August 2004 a woman was shot dead at her home in Krugersdorp by
unknown persons. Inspector Jacobus Gordon was appointed
as the
investigating officer to investigate the crime. In the course of his
investigation and on 25 August 2004, he heard that
two persons had
been arrested for housebreaking. He thought that they could be of
assistance in his investigation of the murder.
He arranged to
interview them and did so on the same day. One of the two persons,
Jeffrey Ndimande (the suspect), implicated himself
in the offence and
identified Owen Magagula (the respondent) as the person with whom he
had been at the time the offence was committed.
[3]
Inspector Gordon requested Inspector Nel to interview the suspect and
take the necessary steps to locate and arrest Owen. On
the same day,
Inspector Nel went to the offices of Inspector Gordon. The latter
told him what the suspect had said. Immediately
thereafter Inspector
Nel interviewed the suspect. The suspect told him that Owen had made
all the plans to commit a robbery and
in the process shot the
deceased. The suspect furnished further details of the commission of
the offence which corresponded with
the information which Inspector
Nel had been given by Inspector Gordon.
[4]
The suspect indicated that he knew where Owen worked and that he
could identify and point him out. The suspect took Inspectors
Gordon
and Nel together with members of the ‛veldspan
’
to
a building site where he pointed Owen out. Inspector Nel approached
the person in charge at the building site and asked him if
he knew
Owen. That person identified Owen as being the same person who had
been pointed out by the suspect. Inspector Nel approached
the person
identified as Owen. He introduced himself, produced his appointment
certificate and informed him who he was. He then
asked the person to
identify himself. The respondent identified himself using the name
Owen. Inspector Nel then, acting without
a warrant to arrest the
respondent, arrested and detained the respondent. The purpose of the
arrest and detention was to ensure
the respondent’s appearance
in court.
[5]
On 30 August 2004 the respondent appeared in court for the first
time. The case was remanded; the magistrate directed that the
respondent be kept in custody. The case came before court on several
occasions thereafter. On each occasion the magistrate directed
that
the respondent be kept in custody.
[6]
The respondent brought a bail application approximately two months
after his first appearance in court. The application was
opposed by
the State. The evidence is scant as to what the basis of the
opposition was. One of the grounds of opposition was that
the
respondent had no fixed address as he resided in a temporary
structure on a building site. The application was refused by the
magistrate. The record of the proceedings was not admitted into
evidence. The additional evidence led and the magistrate
’
s
reasoning in reaching his conclusion are unknown.
[7]
The respondent remained in custody until his release on 18 October
2005 after the charges had been withdrawn against him. One
of the
reasons for the delay was that the prosecution was awaiting a report
on the analysis of DNA samples sent to the laboratory
for analysis.
Unlawful
arrest
[8]
In this court it was common cause that the arresting officer was
Inspector Nel. The issue to be decided is whether or not Inspector
Nel had a reasonable suspicion that the respondent had committed the
offence of murder. If he had held such a suspicion then the
arrest
would have been lawful by reason of the provisions of
section
40(1)
(b)
of the
Criminal Procedure Act 51 of 1977
.
[9]
In
Shabaan
Bin Hussein and Others v Chong Fook Kam & another
[1]
it was held that a
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’.
[2]
[10]
The suspicion of the arresting officer is reasonably held if, on an
objective approach, the arresting officer has reasonable
grounds for
his suspicion.
[3]
Once the required
suspicion exists an arresting officer will be vested with a
discretion to arrest, which he must exercise rationally.
[4]
[11]
Inspector Nel obtained cogent evidence which on the face of it was
acceptable and which was corroborated. He personally ascertained
information from the investigating officer as well as the suspect.
The totality of the evidence indicated that the respondent had
committed the offence. The suspect was able to and did point out the
person who had committed the offence as being the respondent.
The
building site supervisor confirmed that the person who was being
pointed out was known as Owen, the same name which had been
used by
the suspect. It was submitted that at the time of Inspector Nel’s
interview with the suspect, the suspect had given
conflicting
evidence to Inspector Gordon. That fact is irrelevant as it was,
assuming it to be true, unknown to Inspector Nel.
[12]
The facts known to Inspector Nel are sufficient to establish the
existence of a suspicion. That suspicion was reasonably held
as the
facts objectively considered establish reasonable grounds for him to
have had the suspicion.
Unlawful
detention
[13]
The respondent alleged in his particulars of claim that he had been
unlawfully and wrongfully arrested and thereafter detained.
The
appellant denied that the detention was unlawful and pertinently
pleaded that the detention of the respondent from the time
of the
first appearance in the magistrate's court up until the time of the
release was consequent upon the independent discretion
exercised by
that court. The plea was based on authority holding that once an
arrest has been effected ‘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’.
[5]
The two periods of
detention - the period until first appearance in court and the period
from first appearance until ultimate release,
must be considered
separately.
[14]
The respondent’s case for unlawful detention for the period
before his first appearance in court was dependent upon the
appellant
failing to establish that his arrest was lawful. The arrest was not
unlawful. Hence the detention for the period ending
on the day of his
first appearance in court was not unlawful.
[15]
The respondent’s detention after his first appearance in court
is dependent upon the lawfulness or otherwise of the magistrate’s
orders. The magistrate is not a servant of the appellant. In any
event there was no evidence that the magistrate had behaved in
an
unlawful manner. No liability for his conduct is attributable to the
appellant.
[16]
The respondent sought to overcome the difficulty he faced on the
basis that there had been an omission on the part of the appellant’s
servant, Inspector Gordon, to perform a public duty which was
wrongful. This submission was premised on the assumption that the
principle set out in
Woji
supra para 28 and
Zealand
v Minister of Justice and Constitutional Development & another
[6]
para 53 was
applicable.
[17]
There is no need to decide whether the respondent’s reliance on
this submission was well founded as this cause of action
was neither
pleaded nor was evidence led on this issue. The respondent submitted
that the issue had been sufficiently pleaded in
that his failure to
replicate constituted a deemed denial of the allegation made by the
appellant that the respondent had been
lawfully detained pursuant to
the series of orders made in the magistrate's court. This submission
does not solve the problem as
the respondent was obliged to make out
his case in the summons which he did not. In addition a deemed denial
of facts set out in
the plea does not constitute the set of
allegations necessary to make out the case currently being advanced
on behalf of the respondent.
[18]
The trial also was not conducted on the basis of the cause of action
on which the respondent presently submits he relies. No
evidence was
led and none was admissible to establish that the respondent’s
detention after his first appearance in the magistrate's
court was
arbitrary or without just cause. No facts could be or were adduced to
establish the omission upon which the respondent
presently relies.
The only evidence before the trial court concerned Inspector Gordon’s
opposition to the grant of bail.
That evidence was elicited pursuant
to a question by the judge hearing the matter and does not establish
wrongful conduct. The
admissible evidence established that the
detention of the respondent was not at the instance of the
appellant’s servant.
[19]
The appellant in my view justified the arrest and detention of the
respondent up until the day of his first court appearance.
His
subsequent detention was pursuant to the orders of the magistrate who
is not a servant of the appellant. The cause of action
on which the
respondent currently relies was not pleaded, may be an erroneous
interpretation of the authority which it was submitted
founds it and
was in any event not established by the evidence led at the trial.
[20]
I accordingly make the following order:
1 The appeal succeeds
with costs, including the costs of two counsel.
2 The order of the court
a quo is set aside and is substituted with the
following:
‛
1 The appeal
fails; the cross-appeal succeeds.
2 The plaintiff is to pay
the costs of the appeal and the cross-appeal.
3 The order of the trial
court is set aside and is substituted with the following:
“
The plaintiff’s
action is dismissed with costs.”
’
C
G LAMONT
ACTING
JUDGE OF APPEAL
Appearances:
For
the Appellant:
G Marcus SC (with K M Mokotedi)
Instructed by:
State Attorney, Pretoria
State Attorney,
Bloemfontein
For
the Respondent: B P
Geach SC (with E Seima)
Instructed by:
A P Phefadu Attorneys,
Pretoria
Honey
Attorneys Inc., Bloemfontein
[1]
Shabaan Bin Hussein &
others v Chong Fook Kam & another
[1969] 3 All ER 1627.
[2]
Powell NO & others v
Van der Merwe
NO
& others
2005 (5) SA
62
(SCA) para 36:
Woji v
Minister of Police
[2014]
ZASCA 108; 2015 (1) SACR 409 (SCA).
[3]
Duncan v Minister of Law
and Order
1986 (2) SA 805
(A) at 814.
[4]
Minister of Safety and
Security v Sekhoto and another
[2010] ZASCA 141
para 39; 2011 (5) SA 367 (SCA).
[5]
Sekhoto
fn 4 para 42;
Minister
of Safety and Security v Tyokwana
[2014]
ZASCA 130
para 38;
2015 (1) SACR 597
(SCA).
[6]
Zealand v Minister of
Justice and Constitutional Development and Another
[2008] ZACC 3
;
2008 (4) SA 458
(CC).