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[2016] ZAGPPHC 229
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Minister of Police v Dyssel (A763/2014) [2016] ZAGPPHC 229 (7 April 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
7/4/2016
CASE NO: A763/2014
Not reportable
Not of interest to other
judges
Revised.
In the matter between:
MINISTER OF
POLICE
Appellant
and
LAETITIA
DYSSEL
Respondent
JUDGMENT
Tuchten J
:
1. In an action in the
court below, the respondent claimed damages from the appellant on the
ground that on 24 September 2010 she
was unlawfully arrested and
detained by a member of the SA Police Services. She was arrested on a
charge of dealing in liquor contrary
to the provisions of s 167 read
with s 154(1) of the Liquor Act, 27 of 1989 (the old Liquor Act).
Although the old Liquor Act was
repealed by s 46 of the Liquor Act,
59 of 2003 (the new
Liquor Act), the
provisions of the old
Liquor Act
remained
in force pursuant to art 2 of Schedule 1to the new
Liquor
Act, pending
the enactment of provincial legislation covering this
field of the law. No such relevant provincial legislation had at the
relevant
time been enacted in the Western Cape Province, where the
arrest in this case was effected. The defence to the charge was that
the arrest was justified because the arresting officer reasonably
suspected the respondent of having committed the offence in question.
2. The judge below,
Avvakoumides AJ, found that while the arresting officer had indeed
suspected the respondent of having committed
the offence, the
suspicion held by the arresting officer was not reasonable and
awarded the respondent R90 000, interest and costs.
The appeal is
against those orders.
3. The appellant was some
eight days late in applying for a date for the present appeal. This
non-compliance with the Rules formed
the subject of an application
for condonation, which was opposed by the respondent although no
opposing papers were filed. The
appellant's attorney explained that
the lateness arose because he misread the Rule. No prejudice was
occasioned to the respondent
by the lateness and as I shall show, the
appellant has substantial prospects on appeal. Condonation will
therefore be granted but
the appellant must pay the respondent's
costs in relation to the application for condonation.
4.
Section 40(1)(h)
of
the
Criminal Procedure Act, 51 of 1977
empowers a peace officer to
arrest any person whom he reasonably suspects has committed an
offence under any law governing,
inter alia,
the supply of
intoxicating liquor. A member of the SA Police Services is a peace
officer. A member of the SA Police Services was,
at the relevant time
and in the Western Cape Province, where the arrest was effected,
therefore empowered under
s 40(1)(h)
of the
Criminal Procedure Act,
51 of 1977
to arrest any person whom he or she reasonably suspected
of unlawful dealing in liquor.
5. The respondent lived
in a house which she said was owned by her mother at 10 Bien Donne,
Groot Drakenstein (the premises). Her
husband also lived on the
premises. However, the unchallenged evidence of the witness who
testified for the appellant, Warrant
Officer Hurst, was that the
premises were part of a complex which had in earlier times been used
as houses for the warders of a
jail and belonged to a firm he called
Anfrotech. Nothing turns on the resolution of this dispute. The
evidence shows that the respondent's
husband was, in the respondent's
estimation, something of a ne'er do well who did not adequately
provide his share of household
expenses and was a prodigious drinker
of beer.
6. WO Hurst was stationed
at the Groot Drakenstein police station. His primary task related to
the preservation of items seized
by or handed in to the police
pending criminal proceedings but on the day in question, WO Hurst was
entrusted with the execution
of a warrant in relation to the
premises. In fact WO Hurst had previously been involved in operations
at the premises in relation
to similar offences. WO Hurst seems to
have thought that the warrant enjoined him to arrest persons at the
premises but it did
not. In fact the warrant was a search and seizure
warrant, issued on the ground that there was reason to believe that
unlawful
dealing in liquor was taking place there.
7. Be that as it may, in
the late evening on Friday 24 September 2010, WO Hurst, the only
witness to give evidence on behalf of
the appellant, went with a
number of police officers to the premises. Included in their number
was Capt Marina Abrahams, the Groot
Drakenstein station commander. WO
Hurst knew the respondent from his previous dealings with her both in
his capacity as a police
officer and personally.
8. According to WO Hurst,
the servants' quarters were separate from the main house although the
two sections were connected by a
lean to. He said he found the
respondent's husband in the servants' quarters and the respondent
herself in the main house. The
respondent's version is that she was
in bed with her husband in the servants' quarters when the police
arrived. The judge below
believed the respondent on this issue. It is
common cause, however, that in the open plan kitchen and lounge in
the main house
the police found sixteen full 700ml bottles of Black
Label beer and 90 empty beer bottles stacked in some eight crates.
The respondent
was asked for an explanation.
9. WO Hurst said that the
respondent told him that the beer was left over from a previous
party. The respondent's evidence was that
she told the police that
the beers were the property of her husband and that he and his
friends used to drink vast quantities of
beer so that the presence of
16 full bottles was not significant. She said too that her husband
used to do his friends a service
by getting empty beer bottles filled
or, I rather think more accurately, handing in empties and buying
full ones.
10.
WO Hurst formed the belief that the respondent was unlawfully dealing
in liquor. He said that he arrested her, seized all the
beer bottles
and took her back to the Groot Drakenstein police station where, it
is not disputed, he attended to the voluminous
paper work which was
necessitated by the arrest.
11. The respondent,
however, testified that she was arrested by Capt Abrahams, who did
not give evidence. This is an important dispute
because the
appellant's defence was that the respondent was arrested by WO Hurst
and the appellant sought to justify the arrest
on the basis of the
suspicion held by WO Hurst that the respondent was guilty of
unlawfully dealing in liquor. While the court
below did not deal with
this dispute directly, it seems from passages in the judgment,
particularly at para 42, that WO Hurst's
evidence on this issue was
accepted.
12. The probabilities
favour WO Hurst's version on this issue. It was established that it
is the duty of the arresting officer to
attend to the paperwork
arising from an arrest. All the paperwork was done by WO Hurst. The
paperwork included a statement by WO
Hurst, a notice of
constitutional rights, the material required to book in the beer
bottles as exhibits and the completion of the
investigation diary in
the docket. It is in my view improbable that WO Hurst would have done
the paperwork if he had not been required
to do so. As WO Hurst put
it, it would have been illegal for another officer to do the
paperwork and take responsibility in his
or her own name for an
arrest effected by another officer. I can see no reason why WO Hurst
would have acted illegally, as he saw
it, in these circumstances.
13. On Sunday 26
September 2010, the respondent made a statement admitting having sold
liquor. She said in evidence at the trial
before the court below that
her admission was false and that she had made it in the hope that she
would be allowed to pay an admission
of guilt fine and be released.
14. The respondent was
however not released on the Sunday. Instead, she appeared in the
local magistrate's court on 27 September
2010 and was released on
bail. During the course of 2011, the charges against the respondent
were withdrawn.
15. In
Duncan
v Minister of Law and Order,
[1]
the Appellate Division laid down the jurisdictional facts which must
exist before the power conferred by
s 40(1)(b)
of the
Criminal
Procedure Act may
be invoked: the arresting officer must be a peace
officer, the arresting officer must entertain a suspicion; the
suspicion must
be one referred to in Schedule 1 to the
Criminal
Procedure Act; and
the suspicion must rest on reasonable grounds.
Section 40(1)(h) is in terms identical to
s 40(1)(b)
save that the
offences referred to in the former subsection differ from those in
the latter. The jurisdictional requirements for
a lawful arrest under
s 40(1)(h)
are therefore equivalent to those for an arrest sought to
be justified under
s 40(1)(b)
and the reasoning in
Duncan,
supra,
is
applicable to the present facts.
16. The issue on the
merits at the trial was whether the suspicion which it was accepted
by counsel for the parties and, it seems,
by the court below had been
present was a reasonable suspicion. The adduction of evidence in the
court below was complicated by
a ruling made by the trial judge early
in the trial. It was common cause that the respondent was well known
to the officers at
the Groot Drakenstein police station as a dealer
in liquor and that the respondent had a record of several
convictions, for which
she paid admission of guilt fines, for
unlawful dealing in liquor. But when counsel for the appellant began
leading evidence of
these convictions and the fact that they were
known to WO Hurst when he went to the premises on 24 September 2010,
counsel for
the respondent objected on the ground that they
constituted similar fact evidence and were thus inadmissible. The
judge below upheld
the objection and ruled that evidence of these
previous convictions might not be adduced. But then the litigants
proceeded to ignore
this ruling, lead evidence of these previous
convictions and, on the part of the respondent, testify that she had
reformed and
no longer dealt unlawfully in liquor. And the judge
below referred to the fact of the previous convictions in his
judgment.
17. The reason the fact
of the previous convictions was important was because their existence
was an important factor operating
upon WO Hurst's mind when he formed
the suspicion that the respondent was unlawfully dealing in liquor.
In my view, the judge below
confused the test for admissibility of
such evidence at a trial where the evidence is tendered to prove bad
character, a
modus operandi,
propensity or something similar
with the test for admissibility in civil proceedings of the present
nature.
18. In
Powell
NO and Others v Van der Merwe NO and Others,
[2]
the
Supreme Court of Appeal endorsed certain
dicta
of Lord
Devlin in
Shabaan
Bin Hussein and Others v Chong Fook Kam and Another.
[3]
Paragraphs 36 and 37 of the judgment in
Powell,
to the
extent relevant for present purposes, read as follows:
[4]
[36] This Court has
endorsed and adopted Lord Devlin's formulation of the meaning of
'suspicion':
'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] ... Lord Devlin went
on to point out
'another distinction
between reasonable suspicion and
prima facie
proof.
Prima
facie
proof consists of admissible evidence. Suspicion can take
into account matters that could not be put in evidence at all. ...
Suspicion
can take into account also matters which, although
admissible, could not form part of a
prima facie
case.
19. Whether a reasonable
suspicion existed must be considered objectively. Reasonable grounds
of suspicion are those which would
induce a reasonable person to have
the suspicion.
[5]
In my view,
the judge below was wrong in concluding that evidence of previous
convictions may not be taken into account in the
evaluation of
whether the suspicion formed by WO Hurst was reasonable. In this case
the evidence was not tendered to prove bad
character or the like. It
was tendered to prove what was known to WO Hurst at the time of the
arrest and in support of the case
for the appellant that the
suspicion in the mind of WO Hurst was reasonable. If the question of
prejudice is in this context at
all relevant, which I doubt, the
prejudice to the appellant if the evidence were to have been excluded
is obvious: the appellant
would have been precluded from relying on a
factor which significantly informed WO Hurst's decision to arrest and
on which the
appellant relied to establish the reasonableness of WO
Hurst's suspicion. The fact of previous convictions for offences of
unlawfully
dealing in substances may show to a reasonable person that
the suspect is likely to offend again. A reasonable person may also
legitimately conclude that because the suspect previously got off
with a fine rather than a custodial sentence, the suspect thought
that the risk of being caught and punished was outweighed by the
prospect of profit from the unlawful activity in question. Lest
I be
misunderstood, I must make plain that I do not think that it was in
the present circumstances necessarily objectively correct
to draw
these conclusions. I say that a reasonable person was entitled to
come to these conclusions.
20. WO Hurst testified,
and it was not disputed, that he personally had been involved in
operations at the premises on "quite
a few" occasions since
2009. On each such occasion liquor had been found on the premises and
on no less than four such occasions,
the respondent had admitted
guilt and paid a fine. The impression I formed from his evidence was
that the events of 24 September
2010 took place in a parochial rural
context where the social circumstances of the respondent and her
husband were fairly well
known to WO Hurst and other officers at the
Groot Drakenstein police station.
21. It is implicit in
this evidence that the respondent on no previous occasion disputed
the allegation that she was the owner of
the liquor or suggested that
her husband rather than she was the owner. A reasonable person was
thus entitled to suspect, as WO
Hurst did, that the substantial
quantity of unconsumed liquor at the premises together with the large
number of empty beer bottles
was indicative of a course of dealing in
liquor rather than a party or other innocent explanation and that the
version that the
beer belonged to the respondent's husband was
untrue. A reasonable person was entitled equally to consider untrue
the version advanced
by the respondent at the trial that the
respondent's husband, as was put by her counsel
... sometimes goes around
and he buys beers for his friends, they consume them wherever they
are and then they bring them back and
they stack them there and he,
at some stage goes and buys and fills them up again.
22. I may add that the
version I have just quoted was not the only version given by the
respondent at the trial. In evidence in
chief she said that she had
told Capt Abrahams that the empty beer bottles had been brought by
her husband and his friends and
the beer in them drunk away from the
premises, after which the empties were just left in her husband's
car. These empty bottles
were then stacked in the kitchen because he
could not just leave them in his car.
23. The respondent also
said in evidence in chief that she told Capt Abrahams that she had
bought the sixteen full beers for her
husband and that these sixteen
beers were her beers. As her husband was a heavy drinker, sixteen 700
ml bottles of beer (quarts
as they are sometimes called) was "soos
niks vir hom te drink nie."
24. Counsel for the
respondent pointed out in argument that WO Hurst must have
appreciated that when he and the other officers raided
the premises
late that Friday evening, there was no evidence, other than the
presence of the beer and the empties, that the premises
were being
used as a tavern or other drinking place. There were no persons
present other than the respondent and her family and
no money,
indicative of takings for the sale of liquor, was found on the
premises. The difficulty with this submission is that
neither of
these facts was put to WO Hurst and one can therefore not determine
if indeed he suspected the respondent of operating
a tavern. The
offence of unlawfully dealing in alcohol of course does not require
that the offender be doing so at a tavern and
WO Hurst was not asked
if he suspected the respondent of operating a tavern or the like.
25. In my view,
therefore, the judge below erred in concluding that the suspicion
which WO Hurst held was not a reasonable suspicion.
I find it proved
that it was. It follows that the arrest was therefore justified and
that the appeal must succeed. In these circumstances
it is
unnecessary to consider the attack upon the quantum of the award of
damages.
26. There are certain
further matters I should mention. The first relates to the validity
of the warrant of arrest on the strength
of which WO Hurst entered
and searched the premises. There are suggestions in the judgment of
the court below that the warrant
might be invalid. Properly
formulated, I think what was meant was that there might have been
grounds upon which the warrant might
have been declared invalid. But
that was no basis for a criticism of WO Hurst. A police officer, and
indeed any person who is required
by order of court to perform, or
refrain from performing, any act may not ignore such a court order.
WO Hurst's plain duty under
the warrant was to execute it. And I may
add, no steps were taken to set the warrant aside.
27. Counsel for the
respondent submitted that even if the requisites for the valid
exercise of a
s 40(1)(h)
discretion were found to be present, WO
Hurst should be found to have exercised his discretion improperly,
either because of some
ulterior motive or because the appellant
should have been brought to court by some less drastic means or
because she ought to have
been admitted to bail during the weekend
following her arrest or because conditions in the holding cells at
the Groot Drakenstein
were so disgusting that it was unconscionable
that the respondent, or any person, could lawfully be detained there.
28. The difficulty in the
way of acceptance of these submissions is that these additional,
discrete causes of action were not pleaded.
Nor was any notice that
the appellant was at risk in relation to these additional causes of
action, an essential precursor to any
action under
s 3
of the
Institution of Legal Proceedings Against Certain Organs of State Act,
40 of 2002
, given to the appellant. It was argued for the respondent
that the matters in question were fully ventilated at the trial. But
they were not. Counsel for the appellant objected to evidence
relevant to these causes of action at the trial. The judge below
acknowledged that the allegations did not form part of the
respondent's cause of action but ruled that such evidence might be
tendered
as relevant to quantum. Because the appellant was correctly
held at the trial not to be at risk in relation to these unpleaded
causes of action, they cannot avail the respondent on appeal.
29. Costs in the court
below and on appeal must follow the result. propose the following
order:
1. The late application
by the appellant for a date for the hearing of this appeal is
condoned. The appellant must pay the costs
of the application for
condonation.
2. The appeal is upheld
with costs against the respondent.
3. The judgment of the
court below is altered to read: There will be judgment for the
defendant against the plaintiff. The plaintiff
must pay the
defendant's costs of suit.
___________________
NB Tuchten
Judge of the High Court
6 April 2016
I agree. It is so
ordered.
___________________
MW Msimeki
Judge of the High Court
6 April 2016
I agree.
___________________
HJ De Vos
Judge of the High Court
30 March 2016
[1]
1986 2 SA 805
A at 818F-I
[2]
2005 (5) SA 62
SCA paras 36 and 37
[3]
[1970] AC 942 (PC) [1969] 3 All ER 1627
[4]
Footnotes omitted
[5]
R v Van Heerden
1958 3 SA 150
T 152E, referred to with approval in
Duncan, supra, 814E.