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[2018] ZAGPPHC 802
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Minister of Police v Gqanqasi (A209/2017) [2018] ZAGPPHC 802 (28 February 2018)
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: A209/2017
DATE
OF HEARING: 7 DECEMBER 2017
DATE
OF JUDGMENT: 28 FEBRUARY 2018
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
THE
MINISTER OF
POLICE
Appellant
and
TSHOFOKOLO
WILLIAM GQANQASI
Respondent
JUDGMENT
AVVAKOUMIDES,
AJ
[1]
This is an appeal against Judgment and
order
of Magistrate L N C
Mokoena
dated 2 March 2011. The Respondent was ordered to pay to the
Plaintiff the sum of R150 000.00 (ONE HUNDRED AND FIFTY THOUSAND
RAND) rising from the R 1pondent's unlawful arrest and detention by
the Appellant.
[2]
It is common cause that the Respondent was arrested without
the issuing of a warrant of arrest of 29 November
2013 and subsequently detained until 2
December 2013, whereafter he was released after his appearance in
court.
[3]
The Appellant relied on the, evidence of
two witnesses, Constable Molefe Israel Mafolako (who effected the
arrest) and the evidence
of Constable Andrew Peter Tshepo Letsapa
(who accompanied the arresting officer.
[4]
The ground of appeal are follows:
[4.1]
The Learned Magistrate should have found that Section 40(1)(q) of the
Criminal Procedure
Act, Act 52 of 1977 (as amended) did find
application in justifying the arrest of the Respondent;
[4.2]
The Learned Magistrate misdirected himself and erred in awarding an
amount of R150 000.00 (ONE HUNDRED
AND FIFTY THOUSAND RAND) to the
Respondent in damages.
[5]
A Court of AppeaI is. not entitled to set aside the decision of
a lower court
in the exercise of its discretion, m rely because the
Court of Appeal would itself, on the facts of the matter before for
the.
lower court, have come to a different conclusion. The Court of
Appeal may interfere only when it appears that the lower court had
not exercised Its discretion judicially, or that it had been
influenced by wrong principles or misdirection on the facts, or that
it had reached a decision which if' the result could not reasonably
have been made by a court properly directing itself to all
the
relevant facts and principles. See: R v Zackey 1945
AD 505 at 511..2; Madnitsky v Rosenberg 1949
(2) SA
392
(A)
at 398..9 and National Coalition for Gay
and Lesbian Equality v Minister of Home Affair 2000
(SA)
1 (CC) at [11}.
[6]
The provision of Section 40 of the Criminal
Procedure Act, Act 51 of 1977 (as amended) provide for the following:
[6.1]
Arrest by peace officer without a Warrant:
"A
peace officer without a Warrant, arrest any person
-
(a)
who commits or
attempts to commit any offence in
his
presence ;
(b)
who he reasonably suspects of
having committed an offence referred to In Schedule 1, other than the
offence of escaping from lawful
custody, and further....
(q)
where he is reasonably suspected of having committed an act of
domestic violence as contemplated in Section (1) of the
Domestic
Violence, Act
of
1998
, which constitutes an
offence in respect of which violence is an element".
[7]
The
provisions of
Section 3
of the
Domestic Violence Act, 116 of 1998
,
relevant to the arrest by peace officers without a Warrant contain
the following:
3.
A peace
officer
may
without
a
Warrant
arrest
any suspect
at
the scene
of an incident of domestic
violence, who he or she reasonably suspects of having committed an
offence containing an element of
violence against
a
complainant".
[8]
Counsel for the Respondent drew the
court's attention to paragraph 6 of the Appellant's amended plea,
more particularly paragraphs
4.2.2 and 4.2.3 wherein the following is
contained:
''4.2.2
The Plaintiff was arrested on the reasonable suspicion that he had
committed an act of domestic violence,
as
contemplated in Section 1 of the Domestic; Violence Act, Act
116 of 1998, which constitutes an offence in respect
of
which violence is an element, to
wit assault.
4.2.3
The suspicion that the Plaintiff had
committed
a Schedule 1
offence WEJS based on reasonable grounds.
"
[9]
It would appear thus that the Appellant.
in its amended plea, pleaded that the offence of
"assault",
falls within the ambit of the
Schedule 1 offence of the Criminal Procedure Act, Act 51 of 1977. The
plea is ill founded and bad
in law.
[10]
In order for the Appellant (Defendant in
the Court a
quo)
to
have succeeded with a defence in terms of Section 40(1)(q), the
following jurisdictional facts would have had to be present:
[10.1]
The arrestor must be a peace officer;
[10.2]
The arrestor must entertain suspicion;
[10.3]
The suspicion must be that the suspect or the arrestee committed an
act of domestic violence as contemplated in
Section 1
of the
Domestic
Violence Act:
[10.4
]
The
suspicion must rest on reasonable grounds.
See Duncan v
Minister of
Law and Order 1986 (2) SA 805 (A).
[11l
In Mabona and Another v Miister of Law and Order 1988 (2) SA 654 (SE)
at 658F-H, the court
formulated the test as follows:
"...
in evaluating his information
a
reasonable man would bear in mind
that the
section
authorises drastic police action…The reasonable an 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 the suspicion
which will justify an arrest.
[121
A peace
officer
who harbours a reasonable suspicion that an offence has been
committed, of course has discretion
whether
or not to arrest the offender, before
the requisite requirements for the arrest under
Section1
40(1) of the Act to be satisfied. But the presence of the
jurisdictional facts alone, do not suffice
to make the arrest
Iawful. This is so because even though such facts are present.
a discretion whether to arrest or not arises,
and that discretion
must not only be exercised, it must be exercised properly.
See:
Duncan v Minister of Law and Order
supra.
[13]
In
Minister of Safety ,and Security v Sekhoto
2011 (5) SA 367
at
paragraphs 28 to 29, the Supreme Court of Appeal held the following:
"Discretion
[28]
Once the jurisdictional facts for an
arrest, whether in terms of any paragraph of
s
40(1) or in terms of s 43 are
present, a discretion arises. The question whether there
are any constraints
on the exercise of discretionary
powers is essentially
a
matter of construction of the
empowering statute in
a
manner that is consistent with
the Constitution. In other words, once the required jurisdictional
facts are present the discretion
whether or not
to
arrest arises. The officer, it
should be emphasised, is not obliged to effect an arrest. This was
made clear by this court in relation
to s 43 in Groenewatd v Minister
of Justice,.
[29]
As
far
as.
s
40(1)(1')) is concerned, van
Heerden JA said the following in Duncan (at
818H-J):
'If
the jurisdictional requirements are satisfied, the
peace
officer may invoke the power
conferred by the subsection, ie,
he
may arrest the suspect. In other
words, he then has
a
discretion
as
to whether
or
not to exercise that power (cf
Holgate-Mohammed v Duke (1984] 1 All SR 1054 (HL) at 1057). No doubt
the discretion must be properly
exercised. But the grounds on which
the exercise of such a discretion can be questioned are narrowly
circumscribed. Whether every
improper application of a·discretion
conferred by the subsection will render an an-arrestf unlawful, need
not be considered
because it does not arise in this
case."
[14]
On a proper construction of Section
40(1) of the Act and the wording of
Section 3
of the
Domestic
Violence Act, It
is clear that a peace officer may, without a
warrant, arrest any suspect and this indicates that the discretion
should be exercised
before such an arrest can be effected.
[15]
I am not persuaded and
cannot accede to the line of argument that
the Magistrate misdirected
himself and erred in finding that the
arresting officer did not properly exercise his discretion before
effecting the arrest. All
the documents forming part of the record
indicate that the Respondent was arrested on a charge of "assault".
In addition,
during cross-examination, Constable Mofalako testified
as follows:
"[question]:
this woman walked into the police station, she made a statement to
a
different police officer, he
opened or registered the document for assault common, is that correct
[answer]
correct".
[16]
In my view the appeaI cannot succeed
on the grounds on which it was brought and is
accordingly dismissed
with costs.
G.T
AVVAKOUMIDES
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
DATE:
28 FEBRUARY 2018
I
agree:
S
BAQWA
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
DATE:
28 FEBRUARY 2018
Representation
for parties:
For
Appellant:
T.T. Tshivhase
Instructed
by:
State Attorney
For
Respondent: J. Gerber
Instructed
by:
Jan Ellis Attorneys