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[2015] ZAECMHC 44
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Sofika v Minister of Safety and Security (2074/11) [2015] ZAECMHC 44 (27 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – MTHATHA
Case
No. 2074/11
Date
heard: 25/2/15
Date
delivered: 27/2/15
Not
reportable
In
the matter between:
VUYISA
SOFIKA
..................................................................................................................
Plaintiff
and
MINISTER
OF SAFETY AND
SECURITY
....................................................................
Defendant
JUDGMENT
Plasket
J:
[1]
It is common cause that, on 16 November 2008, the plaintiff (who I
shall refer to as Sofika) was arrested by Inspector Phakamisa
Timakwe
(who I shall refer to as Timakwe) acting within the course and scope
of his employment as a member of the South African
Police Service.
Sofika was taken to the Central Police Station in Mthatha where he
was detained overnight before being detained
further at the
Wellington Prison. He appeared in court on 17 November 2008 and again
on 25 November 2008 when he was released on
bail.
[2]
Arising from this, Sofika instituted an action for damages against
the defendant, the Minister of Safety and Security, arising
from what
he alleges was an unlawful arrest followed by an unlawful detention.
[3]
The arrest and duration of the detention are both common cause. So
are the facts that Sofika was arrested without a warrant
of arrest
and was arrested on a charge of rape. His evidence concerning the
conditions of his detention at both the police station
and the prison
were not disputed.
[4]
I am called upon to decide two principal issues as far as liability
is concerned. They are: first, whether Sofika’s arrest
is
unlawful simply because it was effected without a warrant; and
secondly, if not, whether Timakwe formed a reasonable suspicion
that
Sofika had committed the Schedule 1 offence of rape, it not being in
dispute that Timakwe was a peace officer for purposes
of s 40(1) of
the Criminal Procedure Act 51 of 1977 (the CPA).
[1]
A
third issue relating to the manner in which the discretion to arrest
was exercised will also be dealt with.
[5]
Section 38 of the CPA provides for various methods of securing the
attendance of suspects in court. These methods include arrest.
Section 39, dealing specifically with arrest, provides that ‘[a]n
arrest shall be effected with or without a warrant’.
Section
40(1) sets out the circumstances in which a peace office may arrest
without a warrant. They include the situation where
he or she
reasonably suspects the arrestee of having committed an offence
referred to in Schedule 1 of the CPA.
[2]
Section
43 sets out the procedure for applying for a warrant of arrest and s
44 provides for their execution.
[6]
The CPA contemplates two methods of arrest – with and without a
warrant – and defines the circumstances in which
arrests can be
made without a warrant. I am not aware of any authority for the
proposition that a warrant of arrest has to be used
as the preferred
means of arresting a person and the failure to use this means, when
it is possible to do so, vitiates an arrest
made without a warrant
even if s 40(1) empowers it. No such authority was cited to me.
[7]
The legislature has dealt differently with the power to arrest, on
the one hand, and the power to enter premises and search
property, on
the other. In the latter instance, it has made it clear that
searching with a warrant is the default position: all
searches must
be authorised by a warrant unless special circumstances, defined in
the CPA, are present that would justify a search
without a warrant.
Section 21 states that subject to ss 22, 24 and 25, ‘an article
referred to in section 20 shall be seized
only by virtue of a search
warrant’. Sections 22, 24 and 25 are exceptions to this rule.
Section 22, for instance, allows
for a search without warrant in two
circumstances, namely if the person concerned consents to the search
or if the police official,
on reasonable grounds believes that a
search warrant would be issued to him or her if he or she applied for
one but that the delay
in obtaining the warrant would defeat the
object of the search.
[8]
This postulates a very different position to that of arrest. There
is, by contrast, no obligation placed on a police official
to apply
for a warrant of arrest as a means of first resort and only if he or
she cannot for some or other acceptable reason obtain
one, fall back
on s 40(1). A police official who considers the need to arrest a
person has a choice: he or she may either apply
for a warrant or, if
all of the jurisdictional requirements of one or other of the
subsections of s 40(1) are present, he or she
will be empowered to
arrest without a warrant. These two modes of securing the attendance
of a person in court function in parallel,
and not in hierarchical
order as in the case of searches with and without warrant.
[9]
I accordingly find that it is not a requirement for the validity of
an arrest that it must of necessity be authorised by a warrant.
The
absence of a warrant for the arrest of Sofika does not therefore
render the arrest unlawful. In the light of this finding,
it is not
necessary to consider why Timakwe did not apply for a warrant.
Instead I turn to whether the defendant has discharged
the onus of
establishing that Timakwe held the required reasonable suspicion that
Sofika had committed the offence of rape.
[10]
Timakwe testified that he was the investigating officer in the
complaint of rape laid by the complainant against Sofika. Although
he
did not take a statement from the complainant, he read the docket
which contained a statement taken from the complainant when
she laid
the charge, and which alleged that she had been raped by Sofika. It
also contained a medical report that indicated that
the complainant
had been sexually assaulted. On 16 November 2008, he took a statement
from a person to whom the complainant had
reported that she had been
raped. On that day, he also interviewed the complainant who told him
what had happened to her, namely
that she had been imprisoned in
Sofika’s house and raped a number of times by him.
[11]
The complainant was only able to identify Sofika by his first name.
She undertook to lead him to where Sofika was and to point
him out.
She duly did so and Sofika was arrested.
[12]
In
Mabona
& another v Minister of Law and Order & others
,
[3]
Jones
J stated that the test as to whether an arresting officer held a
reasonable suspicion is an objective enquiry involving the
question
whether a reasonable person in the position of the arresting officer
and possessed of the same information would have
considered that
there were good and sufficient grounds for suspecting that the person
to be arrested was guilty of the Schedule
1 offence alleged. He also
stressed that, in this enquiry, it must be borne in mind that what is
required is suspicion, not certainty,
albeit that the suspicion must
be based on solid grounds.
[4]
[13]
Timakwe had before him a statement from the complainant as well as
medical evidence that was corroborative of her allegation
that she
had been raped. He also interviewed a witness who confirmed that the
complainant had reported that she had been raped.
More than that, he
interviewed the complainant and obtained her version from her. On the
basis of the totality of the information
that he had before him, I am
satisfied that his suspicion that Sofika was guilty of rape was
reasonable. The jurisdictional facts
for him to arrest Sofika were
therefore present.
[14]
Timakwe was challenged in cross-examination as to why he had not used
less restrictive means than arrest of securing Sofika’s
attendance in court. This goes to whether he exercised his discretion
to arrest properly, once the jurisdictional requirements
were
present. This was not an issue raised in the pleadings but no
objection was made to the line of cross-examination. For what
it is
worth, and for the sake of completeness, I shall deal with it.
[15]
Timakwe’s answer was that rape is a very serious offence that
justified arrest and made the issuing of a summons, for
instance,
inappropriate. On this account, he cannot be faulted. In
Minister
of Safety and Security v Sekhoto & another
,
[5]
Harms
DP held:
‘
While
the purpose of arrest is to bring the suspect to trial, the arrestor
has a limited role in that process. He or she is not
called upon to
determine whether the suspect ought to be detained pending a trial.
That is the role of the court (or in some cases
a senior officer).
The purpose of the arrest is no more than to bring the suspect before
the court (or the senior officer) so as
to enable that role to be
performed. It seems to me to follow that the enquiry to be made by
the peace officer is not how best
to bring the suspect to trial: the
enquiry is only whether the case is one in which that decision ought
properly to be made by
a court (or the senior officer). Whether his
decision on that question 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.’
In
Sekhoto
the respondents had been arrested on suspicion of stock theft. Rape
is, I am sure, a far more serious offence than stock theft.
Like
stock theft, sentences for rape are invariably sentences of
imprisonment.
[16]
In addition, arrest would have been justified because of the scanty
information available to Timakwe about Sofika. He did not
know
Sofika; the complainant did not even know his surname; he did not
know where Sofika lived and had to be led there by the complainant.
In these circumstances, Timakwe could not reasonably be expected to
use any of the less restrictive means of securing Sofika’s
attendance in court. Put differently, his decision to arrest was not
unreasonable.
[17]
In summary then, I have found that Sofika’s arrest was not
unlawful on account of it not having been effected on the
authority
of a warrant; that the jurisdictional requirements of an arrest
without warrant in terms of s 40(1)(b) of the CPA have
been
established by the defendant, particularly that Timakwe formed a
reasonable suspicion that Sofika was guilty of rape; and
that, in the
circumstances, it was not unreasonable for Timakwe to arrest Sofika,
rather than secure his attendance in court by
a less restrictive
means such as a summons. As a result, Sofika’s claim cannot
succeed.
[18]
The action is dismissed with costs.
--------------------------------------
C
Plasket
Judge
of the High Court
APPEARANCES
For
the plaintiff: Mr S Mfeya, instructed by DN Nolangeni and Associates
For
the defendant: Mr V Msiwa, instructed by the State Attorney.
[1]
The
jurisdictional requirements that activate the discretion to arrest
in terms of s 40(1)(b) of the CPA are: (a) the person effecting
the
arrest must be a peace officer; (b) he or she must entertain a
suspicion; (c) that suspicion must be that the arrestee committed
a
Schedule 1 offence; and (d) the suspicion must rest on reasonable
grounds. See
Duncan
v Minister of Law and Order
1986
(2) SA 805
(A) at 818G-H;
Minister
of Safety and Security v Sekhoto & another
2011 (5) SA 367
(SCA) para 6.
[2]
Section
40(1)(b) of the CPA provides:
‘
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, other than the offence of escaping from
lawful
custody.’
[3]
Mabona
& another v Minister of Law and Order & others
1988 (2) SA 654
(SE) at 658E.
[4]
At
658H.
[5]
Note
1, para 44.