About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 981
|
|
Solly v Minister of Police (A401/15) [2016] ZAGPPHC 981 (8 November 2016)
THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
8
November 2016
Case
no: A401/15
NOT
REPORTABLE
NOT
IN THE INTERESTS TO OTHER JUDGES
REVISED
In
the matter between:
MATHEBULA
TINESS
SOLLY
Applicant
and
MINISTER
OF
POLICE
Defendant
Heard:
8
th
September
Delivered:
8
th
November 2016
Judgement
Molahlehi
J
[1]
This is an appeal against the judgement of the magistrate court in
the Tshwane Central, Pretoria
made under case number 337/2012. The
appeal arises from an action in delict which the plaintiff had
instituted against the defendant
for the alleged arrest and detention
by the members of the South African Police Service (SAPS) at the
Diepsloot car wash.
[2]
It was not disputed that the plaintiff was in fact arrested and
detained by the police without a warrant. The defendant
opposed the
action on the basis that the arrest was justified as the plaintiff
interfered with the police officers in performing
their duties. The
alleged interference with the police officers' duties according to
the defendant arose when the police were effecting_the
arrest of the
plaintiff's brother at the car wash for allegedly consuming alcohol
in a public area.
[3]
The case of the defendant which was presented through the testimony
of Constables, Mahlangu and Maswabela was in
brief that; on the day
in question as they were patrolling the area in Diepsloot they saw
the brother of the plaintiff seated next
to a car wash with a bottle
of alcohol next to him. They assumed that he was consuming alcohol in
public. They stopped the vehicle
and confronted him about what he was
doing. According to them he became aggressive and told them that they
did not know how to
perform their duties and that they should leave
him alone. He then resisted the arrest and in the process assaulted
one of the
police officers with a broken bottle. It however, appears
that he was never charged with that delayed assault.
[4]
The two police officers further testified that the plaintiff arrived
on the scene during the course his brother
resisting arrest. The
plaintiff then blocked the officers as they were trying to put the
brother into their van. He according to
them would close the door
every time they tried to get his brother into the van. Apparently the
commotion that took place in arresting
the brother attracted the
attention of the community resulting in a hostile crowd gathering
around the scene.
[5]
The two police officers felt unease with the situation as it was
developing and accordingly called for a backup.
It was only after the
arrival of the backup that they managed to arrest the brother and the
plaintiff.
Legal
principles
[6]
It is trite that as a general rule an arrest of a person without a
warrant is unlawful unless the arresting authority
can show that the
arrest was in the circumstances justified. It therefore means a
plaintiff who claims to have been unlawfully
arrested and detained,
has the onus of showing that there was an arrest and that it was done
without a warrant. Once those jurisdictional
are established the onus
is on the police to show that even though the arrest was without a
warrant they were in law justified
in effecting the arrest.
[7]
A police officer has the power to arrest without a warrant in terms
of section 40 (1) (j) of the Criminal Procedure
Act of 1977 (the
CPA),
where
any person obstructs him or her in the exercise of his or her duties.
It is trite that in arresting a person without a warrant,
the police
exercise public power. In exercising that power the police officer
has a discretion to decide as to whether or not to
effect an arrest.
[8]
In exercising the discretion whether or not to arrest without a
warrant, a police officer has to be guided by the
principles of
constitutional legality and the fundamental principle of the rule of
law which is the corner stone of our Constitution.
This principle was
enunciated in the Minister of Justice and Constitutional Development
v Zeeland
[1]
as follows:
"The Constitution
enshrines the right to freedom and security of the person, including
the right not to be deprived of freedom
arbitrarily or without just
cause, as well as the founding value of freedom. Accordingly, it was
sufficient in this case for the
applicant simply to plead that he was
unlawfully detained. This he did. The respondents then bore the
burden to justify the deprivation
of liberty, whatever form it may
have taken."
[9]In
Louw v Minister of Safety and Security
[2]
Bertelsmann J said:
"An
arrest
is a
drastic interference with the
rights
of the
individual to freedom of movement and to
dignity. In the resent past, several statements made
by
our Courts and academic commentators have underlined
that
an
arrest
should
only
be
the
last
resort
as
a
means
of producing an accused person or a suspect in court -
Minister of Correctional Services v Tobani
2003 (5) SA 126
(E)
[2001]
1 All SA 370
at 371f (All
SA):
'So fundamental is the
right to personal liberty that the lawfulness or otherwise of a
person's detention must be objectively justifiable
regardless ...
even if whether or not he was aware of the wrongful nature of the
detention."
[10]
The grounds upon which the exercise of the discretion may be
challenged is, as stated in the Minister of Safety and Security
v
Sekoto and another,
[3]
restricted. The SCA
stated in that case that the arrest will be clearly unlawful if
effected for purposes not contemplated in the
law.
[11]The
underlying consideration when effecting arrest without a warrant must
be directed at ensuring that the ends of justice are
achieved. In
Seketo, the court dealt with whether or not the arresting officer was
obliged to consider other ways of bringing the
plaintiff before the
court. In other words, before resorting to the drastic step of
arresting without a warrant the police must,
in the exercise of his
or her discretion, consider other methods of ensuring that the
suspect is brought before the court to answer
to his/ her conduct.
[12]It
is trite that once an arrest without a warrant is admitted or proved
it is for the police, as the defendant, to allege and
prove the
existence of the grounds in justification of the infraction.
[4]
[13]
In Mbovane v Minister of Police,
[5]
the court held:
"[35]
An
arresting police officer who
relies
on
Section
40
(1)
(j)
has to
prove
the
existence
of
jurisdictional
facts
justifying
the
arrest
that
ensued.
Whether
an
arrestee
acted
wilfully
in
obstructing
the
execution of
a
duty
of
a
peace officer must
be
considered objectively. The obstruction must consist of
some or other physical
conduct,
a
positive
action
although
conduct
need
not
always be positive."
Evaluation
/Analysis
[14]In
considering the case of the plaintiff the magistrate in the present
instance, based on the above principles, had to firstly
determine
whether or not there was an arrest and also whether it was effected
without a warrant. The arrest without a warrant having
been admitted,
the next enquiry was to determine grounds justifying such an arrest.
[15]
The arrest without a warrant was clearly established through the
pleadings in which the defendant conceded that the plaintiff
was
arrested on 24 March 2012 and that was effected without a warrant.
This was confirmed by the legal representative of the respondent
in
the opening statement during the trial. It follows that there was no
need for the plaintiff to lead viva voce evidence to discharge
his
onus.
[16]On
the basis of the above the plaintiff had discharged his onus of
showing that he was arrested without a warrant. It follows
therefore
that the onus was then on the respondent to show that the arrest was
in the circumstances justified.
[17]It
is apparent from the reading of the magistrate's judgment that
instead of applying his mind to the above, he took into account
irrelevant consideration which resulted in a misdirection. This is
that misdirection, which, in my view serves as a basis for this
Court
to interfere with the Magistrate's decision.
[18]The
fact that the plaintiff's arrest was initially linked to that of his
brother, is in my view, irrelevant and this includes
the fact that
the plaintiff did not call his brother as a witness to testify on his
behalf.
[19]The
issue which the magistrate ought to have concerned himself with was
whether the defendant had made out a case justifying
the arrest of
the plaintiff.
[20]
In my view, the magistrate ought to have found that there was no
justification for the manner in which the police exercised
their
discretion of arresting the appellant. In this regard I have already
mentioned that there is no evidence from the two police
officers that
they warned the plaintiff that, what they allege he was doing, was an
offence and that if he persisted he would be
arrested. There is also
no evidence that the plaintiff caused any physical harm to the police
in the conduct he is alleged to have
seen involved in. In addition
they do not explain why they could not subdue him once the
reinforcement had arrived. The defendant
presented no evidence that
if indeed the appellant was involved in the conduct as alleged, he
did that wilfully.
[21]
There is a suggestion from the police version that they could not
subdue the plaintiff because of the crowd that had gathered
at the
scene due to the uproar that took place as they were arresting the
plaintiff.
If this is to be believed then the question which the police did not
answer in their testimony is what happened when
the reinforcement
arrived.
[22]
In my view the approach adopted by the two police officers was not
consistent with the promotion of the values of an open and
democratic
society based on human dignity, equality and freedom. In other words
they failed in the performance of their duties
to uphold the
constitutional values of dignity, equality and freedom.
[23]
In
my view, the two officers in
exercising their
discretion
conferred by section 40(1) 0)
of the CPA failed
to do so within the prescript of the Bill
of
Rights
and
acted
irrationally
and
arbitrarily.
[24]
In conclusion on this issue, I find that, in evaluating the evidence
before this Court the defendant has failed to discharge
its duty of
showing that the arrest of the appellant was justified. As concerning
the detention of the appellant the defendant
tendered no evidence as
to why it was necessary to detain him for the period that they did.
There is in this regard no evidence
of reasonable apprehension that
the appellant would abscond or fail to attend court if he was
summoned to do so. This means the
police officers in exercising their
discretion failed to consider other less invasive options than the
detention of the appellant.
The discretion to arrest and detention
the appellant was thus exercised without due regard to the norms and
values of the Constitution.
[25]
In Louw and Another v Minister of Safety and Security and Others,
[6]
the court said:
"What these
statements mean is that the police are obliged to consider, in each
case when a charge had been laid for which
a suspect might be
arrested, whether there are no less invasive options to bring the
suspect before the court than an immediate
detention of the person
concerned. If there is no reasonable apprehension that the suspect
will abscond, or fail to appear in court
if a warrant is
first
obtained for his/her arrest, or a notice or summons
to
appear
in
court
is
obtained, then
it
is
constitutionally untenable
to
exercise
the
power
to
arrest."
[26]
It therefore follows that the defendant is liable for the unlawful
arrest and detention of the appellant.
[27]
Turning to the issue of quantum for damages, the appellant in the
particulars of claim prayed for payment in the amount of
R100 000,00.
In the heads of argument and oral submission, the appellant relying
on a number of cases dealing with this issue prays
for damages in the
amount of RBS 000,00. The defendant made no submission in as far as
this issue is concerned. I see no reason
why I should not accept the
version of the appellant in relation to amount of damages suffered by
the appellant. This amount appears
to ·me to be fair and
equitable in the circumstances of this case.
Costs
[28]
The defendant advanced no reason as to why costs should not follow
the results. I have, however, not been persuaded that in
the
circumstances of this case it would be proper to award punitive costs
as prayed for by the appellant.
Order
[29]
In the premises the following order is made:
1.
The appeal succeeds.
2. The decision of the magistrate
dismissing the claim of the appellant is set aside and substituted
with the following:
a) Judgment is entered in favour of
the appellant.
b)
The defendant is ordered to pay the appellant the amount of R85 000,
00.
c)
The defendant is to pay the prescribed interest rate on the amount of
R85 000,00 from the date of the statutory demand being
16 April 2012
to date of payment.
d)
The respondent is to pay the costs of the plaintiff on the opposed
magistrate's court scale.
3. The defendant is to pay the costs
of the appellant for this appeal on party-to-party scale.
Molahlehi
AJ
Acting
Judge of the South
Gauteng
High Court
I
agree and it is so ordered
M
TwalaAJ
Acting
Judge of the South
Gauteng
High Court
APPEARANCES
APPLICANT:
T
NKOSI
RESPONDENT:
The State Attorney {MR NKUNA)
[1]
2007(2) SACR 401 ( SCA) at paragraph
4
[2]
2006 (2) SACR 178
(T) at 185b-c
[3]
2011(1) SACR 315(SCA)
[4]
Minister of Justice v Hofmeyer
[1993] ZASCA 40
;
1993(
3) SA 131
(A) of 153 E
[5]
(23852/11) [2013] ZAGPJHC 270 (30
October 2013).
[6]
2006 (2) SACR 178
(T).