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[2016] ZAECBHC 15
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Mneno v Minister of Police (647/2013) [2016] ZAECBHC 15 (14 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE HIGH COURT, BHISHO)
Case
no. 647/2013
NOT
REPORTABLE
In
the matter between
KHAYA
MNENO
Plaintiff
versus
MINISTER
OF POLICE
Defendant
JUDGMENT
HARTLE
J
[1]
The plaintiff claims damages consequent upon his arrest and detention
by a police officer acting within the course and scope of his
employment with the defendant at East London on 24 April 2013.
[2]
The particulars of claim allege that on the date in question at about
20h00 he was watching television at his home when a police officer by
the name of Captain Teto confronted him there and accused
him of
“robbery of a cellphone”. He was in fact arrested
for robbery and taken to the Vulindlela Police Station
in Mdantsane
where he was held for “120 hours” (sic), but on a charge
of assault with intent to do grievous bodily
harm (“assault
GBH”) instead. The arrest having been effected on a
Wednesday evening, he was only taken to a
magistrate’s court on
the ensuing Monday. There he waited until 16h00 in anticipation
of appearing, but was released
“without being formally
charged”, as there was no docket before court.
[3]
The
plaintiff pleads that the conduct of Captain Teto was “unlawful,
wrongful and malicious” in that he was arrested
while there was
“no reasonable or probable cause”, and because the arrest
was effected without a warrant.
[1]
[4]
The
defendant admitted the arrest (albeit an hour later than the time
pleaded by the plaintiff), as well as the fact that he was
arrested
by generic members of the South African Police Service (no one in
particular was identified on the pleadings) who acted
in pursuance of
their duties and within the scope of their employment as such.
They claimed however that the arrest and subsequent
detention of the
plaintiff were lawful in that those responsible for arresting him
were authorized to do so on the basis that “members
of the SAPS
are permitted to arrest anyone implicated in an offence listed under
Schedule 1 with or without a warrant of arrest”
and that the
plaintiff had indeed been accused of assault with intent to do
grievous bodily harm, which is an offence listed under
Schedule 1.
[2]
[5]
No specific
provision of section 40 (1) of the Criminal Procedure Act (the
“CPA”)
[3]
was relied
upon in the pleadings as constituting the justification for the
arrest without a warrant although this was evidently
the basis upon
which the defence was conducted at the trial. How the defendant
purported to legitimize the arrest on the
pleadings however is set
forth in the following terms in his plea:
“
The Defendants
(sic) deny the contents of this paragraph.
[4]
In amplification thereof, the Defendants
[5]
plead that the Plaintiff was arrested on the 24
th
April 2013 at about 21:00 on the following grounds:
a.
the Plaintiff was pointed out by the complainant Zikhona Goniwe as
the suspect
in the assault with intent to do grievous bodily harm in
the case that was registered at Vulindlela Police Station as per CAS
115/04/2013,
b.
that the Plaintiff had inflicted injury in the form of bruised upper
and lower
eyelid and sub conjunctiva haemorrhage of the right eye of
the complainant in the case,
c.
that the Plaintiff and the complainant were lovers at the time,
d.
that such act of violence was meted out by the Plaintiff to the
complainant on
account of jealousy,
e.
that the members of the South African Police Service, “the
SAPS”,
had a duty to arrest anyone accused of assault with
intent to do grievous bodily harm, with or without a warrant of
arrest,
f.
that such an offence of assault with intent to do grievous bodily
harm
is an offence listed under Schedule 1 and therefore, members of
the SAPS are permitted to arrest anyone implicated in an offence
listed under Schedule 1 with or without a warrant of arrest,
g.
that members of the SAPS carried out the arrest of the Plaintiff on
the date
and time given here above, without a warrant, and;
h.
that in the nature of the fact that the Plaintiff was regarded to be
dangerous,
(his) arrest was carried out at night, out of public
view.”
[6]
[6]
In response to the averment that the conduct on the part of the
police officer arresting the plaintiff was “unlawful, wrongful
and malicious in that the plaintiff was arrested while there
was no
reasonable or probable cause”, the defendant pleaded as
follows:
“
a.
there was evidence in the hands of the members of the SAPS that were
involved in the arrest
of the Plaintiff that he was in fact the
suspect in the docket that they were investigating, Vulindlela CAS
115/04/2013,
b.
that it was in fact the complainant in the case docket that pointed
out the Plaintiff
to the members of the SAPS that effected the
arrest,
c.
that the complainant could have not been mistaken about the identity
of the Plaintiff
as she and the Plaintiff were lovers at the time of
the alleged assault, and;
d.
that on the contrary, the arrest on the person of the Plaintiff was
not unlawful
and/or malicious and members of the SAPS that effected
the arrest had reasonable cause to arrest the Plaintiff.”
[7]
[7]
The “issues” recognized between the parties were narrowed
down pursuant to a pre-trial conference and recorded in a pre-trial
minute, the relevant extract of which provides as follows:
“
7.
The plaintiff will require the following admission(s) from the
defendant:
7.1
That the plaintiff was; on the 24
th
April 2013 at 20H00;
arrested by a police officer, Captain Thetho; for robbery of a
cellphone,
DEFENDANT DENIES THAT
AND AVERS THAT THE PLAINTIFF WAS ARRESTED BY CPT THETHO ON ACCOUNT OF
ASSAULT GBH ON THE PERSON OF ZIKHONA
GONIWE
[8]
UNDER
CASE NUMBER 115/13.
[9]
7.2
…….
7.3
That the charge was later changed to assault with intent to do
grievous bodily
harm.
NO. THERE WAS NO
ALTERATION WITH THE CHARGE, IT WAS ALWAYS ASSAULT GBH.
7.4
That the plaintiff was detained for 120 hours as he was detained from
Wednesday
24
th
April 2013 until Monday 01
st
May
2013 at 16h00.
NO PLAINTIFF WAS NOT
DETAINED FOR 120 HOURS AS HE WAS ARRESTED ON 21:20 AND NOT 20:00 AS
ALLEGED BY PLAINTIFF.
”
[10]
[8]
At a subsequent pre-trial conference the following questions were
raised by the defendant, which elicited the corresponding replies
recorded below:
“
1.
The plaintiff is aware of the complaint of Assault with inten(t) to
do Grievous bodily harm
registered against him by his girlfriend or
erstwhile girlfriend, Zikhona Goniwe;
PLAINTIFF ADMITS
THIS. PLAINTIFF STATES, HOWEVER, THAT AT THE TIME OF ARREST, HE
WAS INFORMED THAT THE CHARGE WAS THAT OF
ROBBERY AND AT THE POLICE
STATION THE SAID CHARGE WAS CHANGED TO THAT OF ASSAULT WITH INTENT TO
DO GRIEVOUS BODILY HARM.
2.
The plaintiff is aware of the fact that the case that was registered
by Zikhona
Goniwe is still pending before Mdantsane Magistrate Court;
THE PLAINTIFF DENIES
THIS AND AVERS THAT THE SAID MATTER WAS FINALISED.
[11]
3.
…….
4.
…….
5.
The plaintiff admits or denies that the case of Assault GBH
constitutes an offence,
which peace officers are empowered to arrest
on, with or without a warrant, and;
PLAINTIFF IS A LAYMAN,
HE DOES NOT KNOW NOR ADMIT THESE ALLEGATIONS.
[12]
6.
The plaintiff admits or denies that the injuries that Zikhona Goniwe
allegedly
sustained as a result of the assault on her person are as
reflected on the J88 medical form.
ADMITTED
BY THE PLAINTIFF.
”
[9]
At the commencement of the trial the parties agreed that the contents
of the Vulindlela Police docket and other extracts from the police
records be admitted into evidence. The following aspects
are of
relevance:
9.1
the docket was opened at the Vulindlela Police Station under CAS No.
115/04/2013 which records a complaint
at the behest of the
complainant, Zikhona Goniwe, of “assault grievous bodily harm”
committed at 8am on 15 April 2013
at 2 Soga Street, Mdantsane, East
London;
9.2
the docket appears to have been disposed of under the rubric
“withdrawn” on a date which
is not legible on the face of
it;
[13]
9.3
on 19 August 2013 the investigating officer, Sergeant Mtanda, deposed
to an affidavit in the docket
in which she in effect suggested to her
commander that the charge be withdrawn on the basis that the accused
(the plaintiff) could
not be traced; that Ms Goniwe had indicated to
her that he was no longer a threat to her, and that the case had been
“long
outstanding (on) the roll”;
9.4
a medical report in the docket confirms that on the afternoon of 15
April 2013 Ms Goniwe had been examined
by a Dr. Vaidya at the Cecilia
Makiwane Hospital arising upon the complaint of assault at the behest
of the Vulindlela Police.
The doctor noted that she has
sustained “soft tissue injury” arising upon an assault
and that she bore bruises to her
upper and lower eyelids and a sub
conjunctival hemorrhage to her right eye. According to an
“injury statement”
deposed to by a police officer who was
shown the injuries on 15 April 2013 at 17h00, the complainant
exhibited injuries to “the
right eye and head”. The
statement also refers to a diagram (presumably the one reflected on
the J88 report) as being
in conformity with what the officer observed
were the injuries sustained by her;
9.5
an affidavit was deposed to by the complainant herself (which is
unfortunately undated but from the
context appears to have been made
contemporaneously) in support of the complaint in which she gives a
pretext to the assault, namely
that the plaintiff accused her of
cheating on him after reading personal messages on her cell phone,
and that he assaulted her
as a consequence. The relevant
narrative in the affidavit in this regard is recorded as follows:
“
He then beat me
with fist and hands on my face, I try to avoid him but I could not
stop him because he was using power on against
me. I got
injuries on my face left eye and I cannot see well because of what he
have done to me, I got injuries on my face
and head. When I am about
to take my phone he did not gave me saying he is not done to beat
me.” (sic)
9.6
the occurrence book of the Vulindlela police station reflects an
entry in it dated Wednesday, 24 April
2013 opposite serial number
1980 at 21h20 to the following effect:
“
Suspect detained :
Sgt Songqushwa detained 01 Adult B/male Khaya Mneno for Assault GBH.
CAS 115/04/2013 with SAP 14/85/04/2013.
Constitutional rights
explained to him as per SAP14A, Q85985640 and SAP 22 L7537649 and
searched by Sgt Songqushwa with no injuries.
Suspect pointed out by
the complainant. It is the first time suspect arrested for this
offence.”
9.7
the occurrence book reflects a further entry on Saturday 27 April
2013 at 17h50 confirming that the
plaintiff was charged with assault
with intent to do grievous bodily harm. The full entry reads as
follows:
“
Suspect charged:
W/O Ntandani charged one black male SAP 14/85/04/2013. Khaya
Mneno on CAS 115/04/2013. Assault GBH.”
9.8
the relevant extract from the cell register across the designated
columns records the arrest, the charge,
and detention of the
plaintiff at the police cells until the time he was taken to court on
the morning of the ensuing Monday, 29
April 2013.
[10]
A further
volume referred to as the plaintiff’s bundle marked Exhibit “A”
was also entered into evidence by consent.
The only documents
of particular significance in it are the plaintiff’s notice in
terms of section 3(1) of Act No 40 of 2002
in which it is
acknowledged that he was charged by the police with an offence of
assault with intent to do grievous bodily harm,
[14]
and the SAP14A notice of rights
[15]
presented to him at the Vulindlela Police Station which corresponds
to serial number Q8585640. This was signed by him on 24 April
2013 at
21h25 at the behest of Constable Lento who ostensibly informed him of
his constitutional rights. The notice reflects
that he had been
detained for the following reason: “CAS115.04.2013 ASS GBH”.
[11]
The methods
of securing the attendance
of
an accused in court for the purposes of trial are arrest, summons,
written notice and indictment
.
[16]
[12]
There
are two provisions in the CPA dealing with arrest. The first is
section
40(1) which authorises an arrest without a warrant. The other is
section 43 whi
ch
provides that a magistrate may issue a warrant for the arrest of any
person upon the written application of an attorney general
(now a
director of public prosecutions), a public prosecutor or a
commissioned officer of police. It is preferable that an
arrest
rather be effected by virtue of a warrant, but the law permits arrest
without a warrant provided the prescribed circumstances
referred to
in section 40 (1) of the CPA strictly exist. In Mabona and Another v
Minister of Law and Order and Others
[17]
Jones J explains why the second option is the more onerous one:
“
It
seems to me that in evaluating his information
(i.e. whether a reasonable man in an
arresting officer’s position and possessed of the same
information would have considered
that there were good and sufficient
grounds for suspecting that the arrestee was guilty of the relevant
offence listed in Schedule
1
), a
reasonable man would bear in mind that the section
(i.e. section 40 (1) of the CPA)
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.”
[13]
The defendant - purportedly having pleaded a basis upon which the
arrest of the plaintiff
is claimed to have been was lawful, conceded
that the onus of establishing that fact rested on him. The
following extract
from Minister of Law and Order & Another v
Dempsey is apposite in this regard:
“
I
accept, of course, that the onus to justify an arrest is on the
party who alleges that it was lawfully made and, since an
arrest can
only be justified on the basis of statutory authority, that the
onus
can only be discharged by showing that it was made within the ambit
of the relevant statute. Any statutory function can, after
all, only
be validly performed within the limits prescribed by the statute
itself and, where a fact or a state of affairs
is prescribed as a
precondition to the performance of the function (a so-called
jurisdictional fact), that fact or state of affairs
must obviously
exist and be shown to have existed before it can be said that the
function was validly performed.”
[18]
[14]
Since
the Bill of Rights guarantees the right of security and freedom of
the person which includes the right "not to be deprived
of
freedom arbitrarily or without just cause",
[19]
any deprivation of freedom has always been regarded as
prima
facie
unlawful
and requires justification by the arresting officer. For this reason
a plaintiff need only allege the deprivation of his
freedom
and
require of the defendant to plead and prove justification.
[20]
[15]
What the relevant statutory authority relied upon to validate the
plaintiff’s arrest
was, according to Mr. Maseti who appeared on
behalf of the defendant at the trial, albeit not pleaded pertinently,
is that referred
to in section 40(1)
(b)
of the CPA, which
provides as follows:
“
1.
A peace officer may without warrant arrest any person
(a) …
(b) whom he reasonably
suspects of having committed an offence referred to in schedule 1 …”
[16]
The
jurisdictional facts for a section 40(1)(b) defence set out in Duncan
v Minister of Law and Order,
[21]
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]
As an aside
I mention that subsection 40(1)(q) of the CPA may well also have been
of application to the relevant fact set, but was
not relied upon by
the defendant as a basis to justify the arrest. This subsection
validates an arrest by a peace officer
without a warrant of any
person “who is reasonably suspected of having committed an act
of domestic violence as contemplated
in section 1 of the Domestic
Violence Act
[22]
which
constitutes an offence in respect of which violence is an
element”.
[23]
Violence in its ordinary meaning entails behavior involving physical
force intended to hurt, damage or kill.
[24]
[18]
It is trite
that in justifying the arrest the defendant has to show not only that
the arresting officer suspected the plaintiff
of having committed an
offence, but that the officer reasonably suspected the plaintiff of
having committed
a
Schedule 1 offence
.
[25]
[19]
Schedule 1 to the CPA, which is referred to in section
40(1)(b), contains a list
of offences and categories of offences in
which the following (relevant to the present matter) is included:
“
Assault, when a
dangerous wound is inflicted.”
[20]
It is
evident that the concepts of grievous bodily harm” and
“dangerous wound” are not necessarily synonymous
as was
pointed out in Bobbert v Minister of Law and Order:
[26]
“
In my opinion,
however, this ingenious argument cannot succeed. For it to succeed,
the concepts of 'grievous bodily harm' and 'dangerous
wound' in the
context of assault would have to be synonymous to the extent that it
would be said that a person who commits an assault
with intent to do
grievous bodily harm necessarily attempts to commit an assault in
which a dangerous wound is inflicted. This,
in my view, is not so.
Various descriptions of
what the nature of the bodily harm intended to be inflicted must be
before it can be said to be 'grievous'
have been formulated by the
Courts in England, Rhodesia (now Zimbabwe) and Natal. In
R v
Matzukis
1940 SR 76 it was said at 79, citing an old English
case,
R v Ashman
(1858) 1 F&F 88, that
'. . . it is not
necessary that such harm . . . should be either permanent or
dangerous: if it be such as seriously to interfere
with comfort or
health it is sufficient'.
In
R v Edwards
1957 R&N 107 Beadle J (as he then was)
preferred to omit the reference to comfort, and confined the
formulation to serious
interference with health. In
S v Collett
1978 (3) SA 206
(RA) at 208G-H the Court (MacDonald CJ, Lewis JP and
Gubbay AJA) cited with approval the
dictum
of Viscount Kilmuir
LC in
Director of Public Prosecutions v Smith
[1960] 3 All ER
161
(HL) at 171 that 'grievous' means no more and no less than
'really serious'. In
S v Moyana
1980 ZLR 460
the
Zimbabwe Supreme Court seems to have reverted to the formulation
which was favoured in
R v Edwards (supra
). These authorities
are conveniently collected and analysed in the judgment of Baron AJA
in
S v Melrose
1985 (1) SA 720
(ZS) at 721I-722I. In
S v
Mbelu
1966 (1) PH H176 (N) Miller J (as he then was) said:
'However one expresses
it, it is at least clear that there must be an intent to do more than
inflict the casual and comparatively insignificant
and
superficial injuries which ordinarily follow upon an assault. There
must be proof of an intent to injure and to injure in a
serious
respect.'
With these descriptions
of the concept of 'grievous bodily harm' must be contrasted what has
been said of the term 'dangerous wound'
in the present context. In
R
v Jones (supra
) Jennett J (as he then was) discussed the meaning
of these words as they were used in the almost identically
worded First
Schedule to the Criminal Procedure and Evidence Act 31
of 1917, viz 'assault in which a dangerous wound is inflicted'. At
332D-F
he said:
'The expression
"dangerous wound" is not easy to define. One may well ask,
"Is a serious wound always a dangerous
wound?" A minor
wound may be dangerous because of the extra possibility it
creates for septic infection. Then, however,
it is not the wound
which causes the danger but the sepsis. It seems to me that by a
dangerous wound is meant one which itself
is likely to endanger life
or the use of a limb or organ.'
Whichever of the above
descriptions of the term 'grievous bodily harm' is adopted, it seems
to me that this concept is not always
synonymous with the term
'dangerous wound'. As for the
R v Edwards (supra
) formulation,
it expressly disavows any necessity that the harm should
be dangerous; and, in my view, such harm can seriously
interfere
with the health of the victim without necessarily being likely to
endanger his life or the use of any of his limbs or
organs. As for
the formulations which were applied in
R v Collett (supra
) and
S v Mbelu (supra
), to my mind it is quite possible for harm to
be 'really serious' or to constitute injury 'in a serious respect'
without necessarily
being likely to endanger the victim's life
or the use of any of his limbs or organs. Of course, this is not to
say that in
no case does a person who assaults another with intent to
do grievous bodily harm attempt to inflict a dangerous wound on his
victim:
obviously there are many instances where this is, indeed, the
case. However, it does not follow that this must always be so, and
that the mere fact that a person has committed an assault with intent
to do grievous bodily harm necessarily means that he
has
attempted to inflict a dangerous wound.
I conclude that there was
no reasonable ground on which Antha could have suspected, simply
because the plaintiff was being sought
by the police on a charge of
assault with intent to do grievous bodily harm, that he was guilty of
an attempt to commit an 'assault,
when a dangerous wound is
inflicted'. His arrest of the plaintiff, being a statutory function,
could, to use the words of Hefer
JA in
Minister
of Law and Order and Another v Dempsey (supra
at 38B-C) 'only be validly performed within the limits prescribed by
the statute itself'.”
[27]
[21]
An enquiry
into the legality of an arrest effected without a warrant undertaken
in an earlier matter of R v Jones
[28]
also came up short despite the fact that an arresting officer had
information that an assault with a
sjambok
by a man on a young girl aged 15 years had occurred. He also
had information that the girl had an open wound on her face.
Although the incident was described as a cruel and savage attack on
her and the court recognized that she must have suffered excruciating
pain, it yet held that without more information as to the site
or extent of the wound occasioned by the blows, that that
information
at the arresting officer’s disposal (concerning the mere fact
that
sjambok
blows had been delivered to her and that she had an open wound on her
face) did not afford him reasonable grounds for suspecting
that “an
assault in which a dangerous wound is inflicted” within the
meaning of Schedule 1 had been committed.
[29]
[22]
Whilst it
was never gainsaid by the plaintiff that the injuries sustained by
the complainant were of a serious nature, neither was
any objection
taken to the defendant’s plea concerning the mistaken assertion
that an offence of assault with intent to do
grievous bodily harm is
listed under Schedule 1 (which it is not), and that this
per
se
permitted members of the South African Police Service, indeed obliged
them according to the defendant, to arrest anyone accused
of such an
offence or implicated in it with or without a warrant, that is not
the end of the matter. I have highlighted in
footnotes above
the shortcomings in the pleadings in this matter which have not
conduced to either party’s interest and have
certainly not
assisted the court. The plaintiff’s representatives
erroneously accepted without question that the offence
preferred
against him (and which he was evidently prepared to accept
responsibility for at an early stage after his arrest at the
charge
office) constituted a Schedule 1 offence and was not in issue at the
hearing. But the fact that the trial was conducted
on the
fallacious basis of an acceptance by both parties that this was
indeed so is not a premise which this court can accept because
it
erodes the constitutional demand that the exercise of public power by
the Executive and other functionaries should not be arbitrary.
[30]
As was appositely stated in Duncan v Minister of Law and Order:
“
The
power of arrest without a warrant is a valuable means of protecting
the community. It should not be rendered impotent by judicial
encrustations not intended by the legislature. On the other hand the
law is jealous of the liberty of the subject and the police
in
exercising this power must be anxious to avoid mistaking the innocent
for the guilty”.
[31]
[23]
The reason for the offence concerning which a suspicion is required
to be reasonably held
to strictly resort under Schedule 1 goes to
that requirement of rationality, an aspect which was authoritatively
dealt with by
the Supreme Court of Appeal in Minister of Safety and
Security v Sekhoto in the following terms:
“
Whether
his decision (that will be of the arresting officer) on that question
(being whether the case is one in which that decision
– which
is whether to bring the suspect to court)
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 criticised 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.”
[32]
(Emphasis added)
[24]
Whilst I accept in principle that acts of domestic violence are
amongst the most serious
cases warranting the arrest by a peace
officer without warrant of any person reasonably suspected of
having committed such
offence in respect of which violence is an
element, it appears to me from the manner in which the defendant
pleaded justification
for the arrest that it never occurred to him at
all that the arresting officer was required to apply his mind to the
question whether
the assault complained of by Ms. Goniwe was properly
one in which a dangerous wound was inflicted and for this conscious
reason
resorted under Schedule 1. This follows as I said above from
the flawed belief that a member can without warrant arrest anyone
implicated in or accused of an offence of assault with intent to do
grievous bodily harm because it is by its very nature an offence
listed in Schedule 1, which it clearly is not. The evidence (which I
will shortly deal with) confirms that Captain Teto himself
labored
under the same misapprehension.
[25]
Whether or
not an arresting officer has reasonable grounds for the suspicion
entertained by him or her is a question which is required
to be
answered objectively. In other words the test is not whether
the officer believes that he has reason to suspect, but
whether, on
an objective approach, he in fact had reasonable grounds for his
suspicion at the time he effected the arrest.
[33]
Jones J in Mabona fashioned the enquiry in the following terms:
“
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?”
[34]
[26]
In order to satisfy this objective test the court approached the
enquiry in the following
manner:
“
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 but not
certainty. However, the suspicion must be based upon solid grounds.
Otherwise, it will be flighty or arbitrary,
and not a reasonable
suspicion.”
[35]
[27]
The
reasonableness of the suspicion may only be determined upon
consideration of the information which was at the disposal of the
arresting officer at the time and on which the decision was
based.
[36]
The grounds
of such suspicion are not limited to facts which can be proved at
court and may be sufficient if those facts
constitute at least
prima
facie
proof. In Duncan v Minister of Law and Order Van Dijkhorst J
qualified the nature of the suspicion in the following terms:
“
A
lawful arrest in terms of that sub-section can be made upon a
reasonable suspicion. The word “suspicion” connotes
an
absence of certainty and of adequate proof, as does the word
“verdenking” in the Afrikaans text.
As
it was aptly put by LORD DEVLIN in the Privy Council in
Shaaban
Bin Hussien and Others v Chong Fook Kam & Another
1969
(3) All ER 1626
,
1630
:
“
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.”
[37]
[28]
Further,
whilst there may be confirmation of the suspicion by extraneous
objective factors afterwards (for e.g. a reasonable suspicion
as to
identity may be confirmed by an identity parade held later), this
does not satisfy the jurisdictional requirement because
the
reasonableness of the suspicion is one of the
preconditions
for a proper exercise of the power in section 40 (1) (b) of the CPA.
All jurisdictional facts must exist
before
the power is exercised to satisfy the constitutional demand for
rationality.
[38]
[29]
The evidence adduced at the trial in support of the legality of the
plaintiff’s arrest
was unfocussed no doubt because of the
flawed foundation that the plaintiff had committed a Schedule 1
offence without any further
question being necessary in this regard.
As a result the aspect of the critical jurisdictional requirement was
dealt with very
fleetingly or co-incidentally.
[30]
The complainant testified regarding the background to her laying the
criminal complaint
against the plaintiff. It is common cause
that they were in a love relationship and that he was provoked by
jealousy to lift
his hand to her after he had read certain personal
messages addressed to her on her cell phone. She concedes that
she cheated
on him and that this was the pretext under which the
assault happened. She maintained that after the assault her
face felt
numb and was swollen, and her head bled from the roots
where he had tugged at her hair. She could not go to work that
day.
She was initially scared to go to the police or hospital
but ultimately did so at the prompting of her mother who suggested
that
she lay a complaint with the South African Police Service. As an
aside this testimony directed at the severity of the assault in
her
perception is entirely irrelevant to the enquiry because, as it turns
out, she held no discussion with Captain Teto regarding
the nature of
the “attack” on her by the plaintiff or the injuries
sustained by her.
[31]
Over the course of the next few days she says that the plaintiff
harassed her in one way
or another. He sent her messages on her
phone, called her from numbers she did not recognize, and purported
to make promises
to her. He also hacked into her Facebook
profile and posted a picture of a naked woman there which caused her
some embarrassment.
She vaguely asserted that she “had a
protection order” against him, but did not go into any detail
concerning this
aspect except to say that she had obtained it after
the assault on her. It was mentioned in passing only to explain
that
she and the police had struggled to find the plaintiff in order
to serve the protection order on him, let alone to bring him to
justice for the assault complaint itself which she had laid against
him.
[32]
She encountered the plaintiff again on the morning of 24 April 2013
while she was going
to work when he chased her and took her phone
away from her. This event it seems set the stage for him being
arrested later
that evening. She reported this to the police
and also to her father. He was very angry. The family had
been
privy to her fear and experience at the hands of the plaintiff.
Feeling under siege, her father took the liberty of approaching
Captain Teto to discuss the matter with him. It is common cause
that Captain Teto was known to her parents and worshipped
with them
at the same church where he was a senior leader.
[33]
The sequel to this discussion was that Captain Teto and her father
accompanied her to the
house where the plaintiff was arrested by him
in his official capacity.
[34]
The plaintiff appeared to know why they were approaching him and
spontaneously handed over
her cell phone to them which was restored
to her possession. He was told he was being arrested but was
reluctant to accompany
Captain Teto to the police station until he
was assured by the latter that his rights would be read to him at the
police station.
This duly happened at the charge office.
The plaintiff was also prevailed upon there to sign for the
protection order she
had obtained against him, but he refused to
accept service thereof.
[35]
At the police station she noticed that her phone had been returned to
her without the sim
card in it. She reported this fact to the
police as well who asked the plaintiff for it, but he indicated that
he had no
knowledge of its whereabouts.
[36]
As far as she was concerned the reason they went to the house where
the plaintiff was arrested
was to get her cell phone. She
achieved that objective, albeit the phone was returned to her without
the sim card in it.
[37]
Regarding what her father and Captain Teto understood by
the visit to the plaintiff’s
home she could not enlarge upon
except to say that her father “had already told him what had
happened.” Her father
who had been the one to brief him
was not called to testify.
[38]
At the charge office she had overheard Captain Teto enquire what had
happened to her complaint
previously made at the station and why the
plaintiff had not been arrested up until then.
[39]
Captain Sabenzo Teto also testified on behalf of the defendant.
He is a senior member
of the South African Police Service stationed
at NU14 Mdantsane. He says that Ms. Goniwe complained to him
about this “attack”
on her by the plaintiff and also that
he had forcibly removed her phone from her possession earlier that
day. That was the
sum total of the information he had at his
disposal. (The complainant by contrast did not say that she had
emphasized any detail
to him concerning the assault itself or the
injuries sustained by her.)
[40]
The reason he arrested the plaintiff, so he articulated, was for the
assault on Ms. Goniwe
and the injuries, about which he did not go
into any detail whatsoever. He rejected any notion that his
involvement as arresting
officer was improper either for the reason
that he was not stationed at the Vulindlela police station where the
complaint was laid,
or because the complainant’s family was
personally known to him. The arrest was not unlawful, so he
reasoned, since
there was an old case against the plaintiff, the case
number of which he had verified personally with the investigating
officer.
What exactly the details of the case were he did not offer
at all.
[41]
He emphatically denied arresting the plaintiff on a
charge of robbery.
According to him the plaintiff was charged
with assault with intent to do grievous bodily harm on the basis of
the complaint laid
by Ms. Goniwe and he was expected to appear in
court on such charge.
[42]
Under cross examination he acknowledged that when Ms. Goniwe’s
made the report to
him it related to both the assault charge as well
as the fact that her phone had been taken by the plaintiff, but the
latter event
was ostensibly not critical to him and certainly did not
constitute the reason for the arrest at all.
[43]
He confirmed (although he had not said as much when giving his
testimony in chief) that
he had phoned the investigating officer
before
the arrest but evidently not to discuss the details of
the charge against the plaintiff or the nature of the injuries which
she
had sustained. His conversation with his colleague was
focused on the issue that the plaintiff had up until then managed to
evade being found by the police. The investigating officer (who
he referred to in the male gender but was in fact a female
officer)
related to him that “he” (sic) was having difficulty
finding the plaintiff and requested that if
he
happened to
find him he should apprehend and detain him.
[44]
Asked how he had purported to arrest the plaintiff without any
warrant, he confidently
reasoned that an officer could arrest someone
pointed out to him for an “attack on someone”.
(This statement
accords with the flawed premise I have already
alluded to above and is a telltale answer that Captain Teto did not
give any thought
whatsoever to what injuries were sustained by the
complainant in the attack, simply assuming that the fact of the
“attack”
on her was sufficient reason without any further
enquiry being made to arrest the plaintiff without a warrant.)
[45]
The defendant also adduced the evidence of Sergeant Ntombizandi
Mtanda who was assigned
as the investigating officer in the criminal
docket but she could not really take the matter further. She
confirmed that
she had being unable to find the plaintiff in order to
arrest him on the charge laid by Ms. Goniwe. She however received a
call
from Captain Teto after he had arrested the plaintiff to inform
her as much and to get the case number from her. She was not
on
duty at the time. He reported to her that he had arrested the
plaintiff following a complaint that he had taken a phone
from the
complainant and also concerning the assault. He told her that
he had recovered a phone from the plaintiff which
was “broken”.
To my mind this call must have been made after the arrest because it
only came to light at the
charge office that the complainant’s
phone had been returned to her short of the sim card.
[46]
Regarding the plaintiff’s anticipated appearance at the
magistrate’s court
on the ensuing Monday, all she could offer
by way of an explanation for the fact that he had not been called
upon to appear was
that the docket was missing on the day in
question. She cannot recall with exact certainly when, but it
was only found in
the late afternoon. By this time however the
plaintiff has already been released.
[47]
She found him again later quite fortuitously at a shack in the
squatter camp just after
he had returned from Cape Town, took him to
the police station in order to have his fingerprints taken for a
second time, and obtained
a certain address for service of a summons
on him in order to later secure his attendance in court. She
also scanned and
emailed the summons at his request and confirmed by
telephone afterwards that he had received it. Ultimately he
appeared
on the original charge of assault with intent to do grievous
bodily harm, pleaded guilty and was sentenced.
[48]
She refuted the suggestion that she had made a point of bringing the
plaintiff to court
after the issue of the civil action to
“strengthen” the defendant’s case.
[49]
She also disagreed that the plaintiff had been arrested for robbery
as pleaded by hm.
As far as she was concerned when she spoke to
Captain Teto they were
ad idem
that what was in their books so
to speak was an “AGBH” charge.
[50]
She reiterated that it was always the intention by the plaintiff’s
arrest on 29 April
2013 to have him appear in court on the charge of
assault with intent to do grievous bodily harm which would have
happened but
for the fact that the docket went missing. In her
opinion his discharge in the afternoon by the court orderlies was
entirely
serendipitous.
[51]
The plaintiff himself testified. He agreed that he had
quarreled with the complainant
on 15 April 2013 and that he was angry
when he became aware that she had cheated on him. According to
him he had slapped
her with an open hand a number of times. He
conceded too that on the day of his arrest he took her cell phone,
albeit he
claimed that he intended to hold it as a lien only until
she returned his personal possessions to him.
[52]
Later he was at his home when Captain Teto arrived with the
complainant and her father
in tow. He denied that he had
concealed his presence or sought to avoid the police officer.
Since he was anticipating
the complainant’s arrival he claims
that he had given her cell phone to a relative with the instruction
that she hand it
back to her once she had returned his items.
He called on her in response to Captain Teto’s enquiry about
the cell
phone and she took it from the room divider and handed it
over to him.
[53]
After identifying himself to him as a police officer, Captain Teto
justified his presence
there and the reason for the arrest being as a
result of the robbery of the cell phone. He asked how it was
possible to be
arrested for such an offence since the complainant’s
phone had by then being restored to her possession. Captain
Teto
suggested that any discussion to be had would ensue at the
police station where he was taken in a sedan motor vehicle.
[54]
Once at the charge office he was prevailed upon to sign
for a protection order
which he heard the complainant had obtained
against him. He argued with the officer that he was brought
there for robbery,
hence his refusal to sign for the protection
order. After a discussion between Captain Teto and an officer
at the charge
office he was informed that he would be kept in
custody. He conceded signing the notice of constitutional
rights in respect
of the charge of assault with intent to do grievous
bodily harm and that he was advised that he was to be held on such a
charge.
He learnt that the police had been looking for him on
the assault complaint but refuted that they should struggle to find
him as
he had not changed his place of abode.
[55]
He was quite prepared to accede to the complaint or at least accepted
that he had committed
the offence of assault and waited to be taken
to court. On the Monday however his name was not called at
court. At
16h00 he left for home, with the blessing of the
court orderlies, since he had not been called upon by the prosecutor
to appear
in court at all.
[56]
It was only after February 2014 (once he had already instituted the
present action) that
he was contacted by the investigating officer
regarding the complaint and re-charged for the same offence. He
denied that
there was any reason for her to claim that she had been
looking for him for a while. He co-operated fully in respect of
the
investigation and furnished an email address where he could be
reached in order to appear in due course on the charge. He
was
summonsed ultimately, appeared, pleaded guilty and was convicted and
sentenced.
[57]
Under cross examination he purported to concede that there was an
entitlement to arrest
him because he had assaulted the complainant
but claims that his objection was against the “sequence of
events” or
how things unfolded. The nature of his real
objection was not made perfectly clear although it seems to relate to
his contention
that having been informed that he was to be arrested
for robbery, he was then held on a charge of assault with intent to
do grievous
bodily harm instead.
[58]
It is common cause that the plaintiff was “accused of”
and implicated in”
an offence of assault with intent to do
grievous bodily harm following Ms. Goniwe’s complaint made
under the relevant docket,
but that in itself would not have entitled
a police officer to arrest him for such an offence sans warrant
without any further
enquiry before arresting him to confirm that the
charge was indeed one properly envisaged by Schedule 1. This is
a misstatement
of the law and a misapprehension under which Captain
Teto himself evidently laboured as well.
[59]
Ironically it might have offered a complete defence to the
plaintiff’s arrest without
a warrant had Captain Teto offered
the explanation that he had reasonably suspected the plaintiff of
committing the offence of
theft of the complainant’s cell phone
(or robbery as the plaintiff claimed he was informed), since both
theft and robbery
are offences listed in Schedule 1, but he
vehemently disavowed that this was the reason for the arrest.
Whilst this is not
a dispute I need necessarily resolve, it is more
probable than not in my view that the plaintiff’s taking of Ms.
Goniwe’s
cell phone was in fact the reason for the arrest.
The plaintiff’s version that he was informed that he was being
arrested
on a charge of robbery of a cell phone is consistent with
the defendant’s version that he promptly handed it over to
Captain
Teto upon first being confronted by him, as well as Ms.
Goniwe’s independent testimony as it were that this was the
reason
they went to look for the plaintiff and the objective sought
to be achieved by the whole exercise. Even the investigating
officer who was not on the scene of the arrest bore knowledge of the
cell phone debacle. Be that as it may Captain Teto eschewed
any
reliance of a suspicion held concerning a charge of theft and neither
was this pleaded as justification for the plaintiff’s
arrest.
[60]
What was notably absent in Captain Teto’s account was any
assurance at all that he
pertinently considered whether the offence
with which the plaintiff was charged or in which he was implicated on
the “old
case” was a Schedule 1 offence. One would
expect this from a defendant who bears the onus to justify the
arrest. Ms.
Goniwe according to her testimony had no discussion with
him regarding the details of the attack upon her or the nature of the
injuries which she had sustained as a result thereof. If her father
had related such details to him, he certainly did not expound
upon
this. He claimed to have had a discussion with the
investigating officer concerning the docket
before
the arrest,
but she contradicted him in this regard by her testimony that the
discussion was had after the fact. (This would
accord with Ms.
Goniwe’s evidence that Captain Teto made enquiries concerning
the old case only once they were at the charge
office.)
[61]
In any event, according to both Captain Teto and the investigating
officer the discussion
had concerning the matter was not about the
details of the complaint itself and the injuries sustained by Ms.
Goniwe. Instead the
reason for the call was merely to verify the case
number. Further, had Captain Teto carefully and critically
analyzed the
relevant information in the docket there does not appear
to be any suggestion of an assault of a more critical or serious
nature
such as is envisaged by the listed offence of assault referred
to in Schedule 1. The injuries noted were soft tissue injuries
and the narrative reads as if the assault were an “assault
common”. The fact that the face of the docket records
a
complaint of assault with intent to do grievous bodily harm does not
make it an assault envisaged by Schedule 1 and the investigator’s
own views held regarding the matter (even if she had shared them with
Captain Teto before making the arrest) would not have exonerated
him
from undertaking his own enquiries in this regard. The arrestor
is required to apply his mind himself before making the
arrest and
should not rely too readily on what he is told by a colleague (if he
was told by her at all). If Captain Teto
had been informed of
the intricate and essential details on the basis of which he could
make the assessment that the assault was
more than an assault common,
he certainly did not take the court into his confidence in this
regard.
[62]
In
order to ascertain whether a suspicion that a Schedule 1 offence had
been committed is reasonable, there is required
to be an
investigation into the essentials relevant to each listed
offence.
[39]
In an
instance such as this however where the arresting officer assumed
erroneously that a complaint of assault with intent
to do grievous
bodily harm is a Schedule 1 offence without any qualification, it is
obvious that he would as a result have made
no enquiries into the
essentials and therefore could not have satisfied himself that a
Schedule 1 offence had been committed by
the plaintiff. The proven
facts also point to a failure on his part to have considered the
relevant matter before him.
[63]
In the result the defendant’s purported reliance on section
40(1)(b) of the CPA cannot
succeed and the plaintiff’s arrest
was unlawful. So too the entire period for which the plaintiff was
detained (115 hours),
following the illegal arrest, is unlawful as
well.
[64]
In the assessment of damages it is irrelevant in my view that the
plaintiff was later summonsed
to appear for the same offence and that
he accepted responsibility for the assault and pleaded guilty.
This does not ameliorate
the underlying illegality of the arrest and
detention.
[65]
There are
no standout features that justify anything more than the usual
compensation for an infringement of this nature which other
courts
have imposed in recognition of the principle that unlawful arrest and
detention constitutes a serious inroad into the freedom
and rights of
an individual. Although something was made of the fact that the
plaintiff could have been brought before the
court earlier
notwithstanding the 48 hour rule, this was not pertinently
pleaded.
[40]
[66]
The plaintiff is a young student who did not claim vociferously that
the impairment to
his dignity was marked or that the experience held
any lasting terror for him. Of course any unlawful arrest and
detention must
be assuaged by a suitable award of damages in order to
give recognition to the fact that:
“
In
considering quantum sight must not be lost of the fact that the
liberty of the individual is one of the fundamental rights of
a man
in a free society which should be jealously guarded at all times and
there is a duty on our Courts to preserve this right
against
infringement. Unlawful arrest and detention constitutes a
serious inroad into the freedom and the rights of an
individual.”
[41]
[67]
In Olgar v
Minister of Safety and security
[42]
Jones J in assessing damages for an unlawful arrest and detention
observed that:
“
In
modern South Africa a just award for damages for wrongful arrest and
detention should express the importance of the constitutional
right
to individual freedom, and it should properly take into account the
facts of the case, the personal circumstances of the
victim, and the
nature, extent and degree of the affront to his dignity and his sense
of personal worth. These considerations
should be tempered with
restraint and a proper regard to the value of money, to avoid the
notion of an extravagant distribution
of wealth from what Holmes J
called the ‘horn of plenty”, at the expense of the
defendant.”
[43]
[68]
In this instance I do not find the evidence established that Captain
Teto was guilty of
any malice. His failure is that he did not
consider the details of Ms. Goniwe’s complaint itself and her
injuries rather
than just verifying the case number because he
believed without further ado that the mere fact of the open docket of
“Assault
GBH” afforded him the automatic right to arrest
the plaintiff without a warrant. He subjectively believed he
was entitled
to arrest him. It was suggested that there might
have been some impropriety around him involving himself in an
official capacity
in acting on the complaint of a different police
station than his and in respect of a family known to him, but his
reply that he
was expected to act without fear or favour on any
complaint made anywhere in the Republic convinced me of his stern
sense of duty.
It would no doubt have been advisable for him to
steer clear of the matter for fear of a perception of bias and/or
conflict of
interest, but the evidence did not establish that he bore
the plaintiff any malice. In any event it could not have been
seriously
suggested that the purpose of the arrest (assuming its
validity) was not to bring the plaintiff to justice. Even on
the plaintiff’s
version he was prepared to go to court to
answer the charge of assault. His only confusion related to
why, having been informed
that he was being arrested for robbery, he
was then charged with assault with intent to do grievous bodily harm.
[69]
Having
regard to all the circumstances and factors necessary to be taken
into account I consider damages in the sum of R72 000.00
to be
fair with costs to follow that result on the appropriate tariff of
costs applicable in the magistrate’s court.
It was always
the contention of the defendant that the action could have been
disposed of in the magistrate’s court and that
he intended to
argue, in the event of the plaintiff succeeding, that costs should be
limited to the scale applicable to that court.
In my view there
was no complex issues in the matter, the amount claimed in respect of
the unlawful arrest and detention was limited
to R100 000.00,
and the action could have proceeded in that court where litigation is
less expensive.
[44]
[70]
There was a request in the heads of argument filed on the defendant’s
behalf that
I make an order in his favour in respect of costs
reserved on 18 November 2015, but no basis was held out to me why I
should do
so. Those costs will therefore be costs in the cause.
[71]
I issue the following order:
(1) The defendant is
ordered to pay to the plaintiff:
(a) damages in the
sum of R72 000.00, together with interest thereon at the legal
rate calculated from date of judgment
to date of payment; and
(b) costs of suit on the
appropriate scale applicable to proceedings in the magistrate’s
court, together with interest thereon
at the legal rate calculated
from date of
allocatur
to date of payment.
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING: 29 February & 1 March 2016
DATE
LAST HEADS OF
ARGUMENT
DELIVERED: 17 March 2016
DATE
OF JUDGMENT: 14 June
2016
APPEARANCES
:
For
the plaintiff:
Mr.
Mayekiso
Instructed
by
Diko
Attorneys,
King
William’s Town
(ref.
Mr Diko/VIV003)
For
the defendant:
Mr.
Maseti
Instructed
by
The
State Attorney,
King
William’s Town
(ref.
Mrs Pillay 805/13 – P8)
[1]
On
the pleadings no distinction was drawn between the two separate and
distinct causes of action of wrongful arrest and malicious
arrest.
(See Tӧdt v Ipser
1993 (3) SA 577
(A) at 587 A-C.) The
trial was conducted as if the cause of action related to unlawful
arrest and detention only, but in
heads of argument filed on the
plaintiff’s behalf at the conclusion of the trial it was
averred that “the crux of
(his) case rests squarely on the
malicious
arrest and detention by Captain Thetho on the 24
th
to the 29
th
April 2013”. Malicious arrest was neither properly
pleaded nor proven. It was also suggested in argument that the
discretion to arrest was exercised in an improper manner because the
arrest was unnecessary and a less drastic method of securing
his
attendance at court could have been employed, but this aspect was
never pertinently raised as an issue on the pleadings.
(See in
this regard Minister of Safety and Security v Sekhoto
2011 (5) SA
367
(SCA) at par [57]) In this judgment I have proceeded on
the premise that the claim before me is one strictly for unlawful
arrest and detention.
[2]
Assault
grievous bodily harm is not listed as an offence. However
“assault, when a dangerous wound is inflicted”
is such a
listed offence.
[3]
No. 51 of 1977.
[4]
The
allegation under denial in paragraph 4 of the particulars of claim
read as follows:
“
On
or about the 24
th
April 2013 and at or around 20h00, the Plaintiff was watching
television at his home, when a police officer by the name of Captain
Thetho whose full and further particulars are unknown to the
Plaintiff, entered and demanded to see Plaintiff and accused him
of
robbery of a cell phone.” Paragraph 5 of the particulars
of claim goes on further to allege that he was then arrested
for
robbery. To this paragraph the defendant pleaded a bare
denial. The “amplification” referred to in
response to the particulars of claim however no doubt purports to
justify the arrest, albeit this is only dealt with in the next
paragraph 5. The defendant’s plea was in my view
excipiable on several bases, but no exception was taken to it by
the
plaintiff.
[5]
Only
the Minister of Police was cited as a defendant.
[6]
Since the defendant referred to Schedule 1, I suppose it can
reasonably be inferred that section 40(1)(b) of the CPA is the
applicable statutory provision on which reliance was intended to be
placed.
It
is notable however that nothing is pleaded about any suspicion,
reasonable or otherwise.
[7]
These averments seem to suggest that the defendant has missed the
point about the issue being whether Captain Teto entertained
a
reasonable suspicion that the plaintiff had committed a Schedule 1
offence. There was never any issue regarding the identity
of
the plaintiff.
[8]
Evidently the substance of what was denied is both the time of
arrest and that the plaintiff was arrested for an offence of robbery
as opposed to assault with intent to do grievous bodily harm.
This is probably what the defendant meant to deny in response
to
paragraph 4 of the particulars of claim and not the fact of the
arrest.
[9]
This purports to be the CAS number of the docket at the Vulindlela
Police Station, namely 115/04/2013.
[10]
The defendant baldly denied the allegation in the plaintiff’s
particulars of claim that he had been detained subsequent
to his
arrest but it is apparent from this recordal that the fact of the
detention itself was not denied, only the duration thereof.
(As an
aside it is to be noted that even if the arrest had happened an hour
later than 20h00, the duration of the plaintiff’s
detention
does not equate to 120 hours but to 115.) From the evidence adduced
and the manner in which the trial was conducted
the defendant sought
to rely on the provisions of section 50 of the CPA to justify the
plaintiff’s detention
[11]
It
emerged from the evidence that subsequent to his arrest and
automatic discharge at 16h00 on the Monday, the plaintiff was
summoned on the same charge again. Upon his later appearance he
pleaded guilty ostensibly to the same charge of assault with intent
to do grievous bodily harm.
[12]
Whilst the plaintiff may have had no inkling in this regard, it is
regrettable that those representing him did not take issue
with this
question which asserts an entirely incorrect premise.
[13]
There
was an issue regarding exactly when the charge was withdrawn but
this had no bearing ultimately on the enquiry into whether
the
arresting officer had entertained a reasonable suspicion that the
plaintiff had committed a Schedule 1 offence. The
parties
appeared to be
ad
idem
that the charge had not been withdrawn by the date of the
plaintiff’s arrest.
[14]
According
to the pleadings the plaintiff was held but never “formally
charged”, although the emphasis on the absence
of a formal
charge could also relate to his failure to have appeared before the
magistrate on the Monday after his arrest.
[15]
This is the standard notice in terms of section 35 of the
Constitution Act, No. 108 of 1996 warning a detainee of his
constitutional
rights upon arrest and detention.
[16]
Section
38 of the CPA.
[17]
1988
(2) SA 654
(SE) at 658F.
[18]
1988 (3) SA 19
(A) at 38B – C; Duncan v Minister of Law &
Order
1986 (2) SA 805
(A) at 814 I – J; Minister of Law &
Order and Another v Hurley & Another
1986 (3) SA 568
(A) at 587
H – 588 C and 589 D – G.
[19]
Section
12(1)(a) of the Constitution.
[20]
Minister
van Wet en Order v Matshoba
1990 (1) SA 280
(A).
[21]
1986 (2) SA 805
(A) at 818G-H.
[22]
No.
116 of 1998.
[23]
Domestic Violence in terms of that Act is defined to mean:
“
(a)
physical abuse;
(b)
sexual abuse;
(c)
emotional, verbal and psychological abuse;
(d)
economic abuse;
(e)
intimidation;
(f)
harassment;
(g)
stalking;
(h)
damage to property;
(i)
entry into the complainant’s residence without consent,
where
the parties do not share the same residence; or
(j)
any other controlling or abusive behavior towards a complainant,
where
such conduct harms, or may cause imminent harm to, the safety,
health or wellbeing of the complainant.”
[24]
The
Oxford Concise English Dictionary.
[25]
Mhaga
v Minister of Safety and Security
[2001] 2 All SA 534
(Tk);
Manqalaza v MEC for Safety and Security, Eastern Cape
[2001] 3 All
SA 255
(Tk).
[26]
1990 (1) SACR 404 (C).
[27]
at 408 (h) – 409 (i).
[28]
1952
(1) SA 327 (EDLD).
[29]
I
am inclined to agree with Gardner JP’s observations that it is
unfortunate that an officer cannot arrest without a warrant
unless
“a dangerous wound is inflicted” and that this does not
appear to be right especially where an actual assault
has been
committed and force has been applied to another.
[30]
Pharmaceutical
Manufacturers Association of SA and Another: In Re Ex Parte
President of the RSA and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC) at paragraphs
[85] – [86], and para [90].
[31]
Duncan v Minister of Law and Order 1984 (3) 460 (T) at 466 D.
[32]
Supra
at
par [44].
[33]
Botha v Lues
1983 (4) SA 496
(A) at 503D; Duncan v Minister of Law &
Order
supra
at 814 D – E.
[34]
Mabona
supra
at 658
E.
[35]
Mabona
supra
at 658 G – H.
[36]
Manqalaza
supra
at par [10].
[37]
Duncan
supra
at 456 H – I.
[38]
Manqalaza
supra
at par[13]
[39]
Ramakulukush
v Commander, Venda National Force
1989 (2) SA 813
(V) at 836G –
837B.
[40]
Where
the exercise of a discretion is questioned, the onus to establish
the improper object of the arrestor will best on the arrestee.
Duncan v Minister of Law and Order
1986 (2) SA 805
(AD) at 819 A.
[41]
Thandani
v Minister of Law and Order
1991 (1) SA 702
(E) at 707 B.
[42]
Unreported
ECD case no 608/07.
[43]
At
par [16].
[44]
Vermaak
v Road Accident Fund
[2006] JOL 1693
(SE) at par [5].