Minister of Police v Bosman & Others (1163/2020) [2021] ZASCA 172 (9 December 2021)

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[2021] ZASCA 172
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Minister of Police v Bosman & Others (1163/2020) [2021] ZASCA 172 (9 December 2021)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 1163/2020
In the matter
between:
THE MINISTER OF
POLICE
APPELLANT
and
SHAWN BOSMAN

FIRST RESPONDENT
TANUSHKA
DAWSON

SECOND RESPONDENT
SERANO
DAWSON
THIRD RESPONDENT
BRENDA
CLAASEN
FOURTH RESPONDENT
CHESLYN
FOSTER
FIFTH RESPONDENT
GRANT
MARKLEY
SIXTH RESPONDENT
DENVER
LACKAY
SEVENTH RESPONDENT
CHINE
JASS
EIGHTH RESPONDENT
MORNAY
JASS
NINTH RESPONDENT
Neutral
citation:
Minister
of Police v Shawn Bosman & Others
(1163/2020)
[2021] ZASCA 172
(9 December 2021)
Coram:
SALDULKER ADP and
MATHOPO, MOLEMELA and NICHOLLS JJA and SMITH AJA
Heard:
02 November 2021
Delivered:
This judgment was handed down
electronically by circulation to the parties' representatives by
email, publication on the Supreme Court
of Appeal website and release
to SAFLII. The date and time for hand-down is deemed to be at 10h00
on 09 December 2021.
Summary:
Criminal law and procedure –
Criminal Procedure Act 51
of 1977
–
sections 40(1)
(b)
,
(f)
and
(h)
– unlawful arrest and detention – whether the respondents’
arrest and detention was lawful in terms of
ss 40(1)
(b)
,
(f)
,
and
(h)
of the
Criminal Procedure Act 51 of 1977
– arrest and detention justified
– award for damages set aside.
ORDER
On
appeal from:
Eastern Cape Division of
the High Court, Grahamstown
(
Mapoma
AJ and Revelas J,
sitting as
court of appeal):
1
The appeal is upheld with costs.
2
The respondents are to pay the costs of the
appeal, such costs to include the costs of two counsel.
3
The order of the full court is set aside and the
following order is substituted:
‘
1
The appeal is upheld with costs.
2
The judgment of the Port Elizabeth Regional Court, under case number
ECPERC
845/14, is set aside and replaced with the following order:
“
The plaintiffs’
claims are dismissed with costs.”.’
JUDGMENT
Saldulker ADP
(
Mathopo, Molemela and
Nicholls JJA and Smith AJA
concurring):
[1]
This is an appeal by the appellant, the Minister of Police, against
the judgment and
order of the Eastern Cape Division of the High
Court, Grahamstown (Mapoma AJ, with Revelas J concurring, sitting as
a court of appeal)
(the high court), in which the arrest and
detention of the respondents, Shawn Bosman (first respondent),
Tanushka Dawson (second
respondent), Serano Dawson (third
respondent), Brenda Claasen (fourth respondent), Cheslyn Foster
(fifth respondent), Grant Markley
(sixth respondent), Denver Lackay
(seventh respondent), Chine Jass (eighth respondent) and Mornay Jass
(ninth respondent), were confirmed
to be unlawful and unjustified,
and the award for damages payable by the appellant upheld.
[1]
The high court dismissed the appellant’s appeal with costs on 28
July 2020. This appeal is with the leave of this Court.
[2]
This appeal raises the issues as to whether the arrests of the
respondents and their
subsequent detention were unlawful, including
the issue of the awards made to them with regard to damages. It is
necessary to look
at what unfolded on the night of their arrest and
detention.
Background Facts
[3]
On or about 31 December 2013, and at around 20h00 - 21h00, the
respondents were travelling
together in a black Nissan bakkie, being
driven by the first respondent, Shawn Bosman. On the same night,
warrant officer Deon Goeda,
employed with the South African Police
Service (SAPS), and stationed at Gelvandale Police Station, was on
duty, performing crime
prevention duties, in the vicinity of
Schauderville, Port Elizabeth. He was driving a marked police
vehicle, G12, a Chevrolet Aveo,
in the company of a reservist,
Constable Schoenie, when he received information at around 20h00 from
radio control that a shooting
incident had occurred in Malabar,
Extension 6, and that the suspects had fled in a black Nissan bakkie.
The radio information was
not directed at him personally, but it was
a general radio control message to police officers. He could not
remember whether any
names were reported. He reacted immediately,
activated the sirens, the blue lights and proceeded towards the
shooting incident at
Malabar.
[4]
En route to the scene of the shooting, they received another radio
communication from
a police vehicle, G8, that the latter was chasing
the black bakkie down Fitchardt Street. When Goeda turned into
Fitchardt Street,
he saw the bakkie and the police vehicle that was
pursuing it, drive past him at a high speed. Goeda gave chase,
overtaking the police
vehicle, and pursued the fleeing bakkie. The
bakkie ignored the sirens and the blue lights and kept on driving at
a high speed, ignoring
a number of traffic lights.
[5]
During the high speed chase, Schoenie informed Goeda that something
had been thrown
out of the window of the bakkie. Ultimately, when the
bakkie came to a stop, Goeda took out his firearm, approached the
bakkie, and
ordered all the occupants to disembark. There were 13
people in the bakkie, three females, seven males and three children.
The G8
and other police vehicles arrived. The passengers and the
bakkie were searched and nothing was found. Some of the passengers
smelt
of alcohol. After the search, the respondents were made to lie
face down on the ground. Goeda then ordered Schoenie and Sergeant
van
Rensburg to search the area where Schoenie had seen an object being
thrown from the bakkie. After some time, Van Rensburg radioed
Goeda
to inform him that a firearm was found with live ammunition.
Forensics and ballistic experts were called to the scene. Primer
residue testing
[2]
was conducted
on the respondents, exhibits were sealed and forwarded for forensic
analysis.
[6]
Goeda testified that he questioned the respondents at the scene of
the arrest, but none
of the respondents ‘owned up’ to possessing
the firearm. He decided to arrest all the respondents for further
investigation,
because he had received information about the shooting
incident at Malabar, and because of the fact that a firearm was
found. He
explained to the respondents that he was arresting them for
the unlawful possession of a firearm, and that they could possibly be
suspects in a shooting incident at Malabar. The children were taken
away by family members. One of the respondents, Ms Claasen, a
minor,
was detained at Nerina One Stop Youth Justice Centre (Nerina House).
[7]
Sergeant Claasen, who was a detective in the South African Police
Service, attended
the shooting incident at Malabar. He was informed
by witnesses at the shooting scene that the deceased, Ivan van Wyk,
was shot twice
by one Romano Foster, and that ‘Mano’, the first,
third, sixth and ninth respondents had assaulted the deceased, and
one Bradley
Hartbees. He took the statements of two witnesses. The
witnesses informed him that the murder suspect had fled in a black
bakkie.
This information was conveyed via radio to the other police
officers who were doing patrols. Whilst he was still at the shooting
incident at Malabar he heard over the radio that the suspects had
been arrested after a car chase. He then attended at the Gelvandale
police station to verify the names of the persons arrested against
the names of the suspects he had received at the shooting incident
at
Malabar. He interviewed the suspects, all of whom denied being at the
shooting incident. Initially, the suspects were arrested
for the
illegal possession of a firearm, but later when the investigation was
completed, some were charged with murder. He received
the docket
about three days after the incident with instructions to arrange for
blood samples to be taken of the respondents. Later
in the year some
of those who had been arrested, namely Romano Foster, Shawn Bosman
(the first respondent), Serano Dawson (the third
respondent), Grant
Markley (the sixth respondent) and Mornay Jass (the ninth respondent)
were charged with the murder. However, these
charges were also
withdrawn, because one of the witnesses died and the other refused to
testify.
[8]
The respondents’ version was that they were travelling at night
from a beach at Summerstrand
at which they had been partying. It was
New Year’s Eve, they were celebrating and had consumed large
quantities of alcohol. While
travelling to another party, Shawn
Bosman, who was the driver, noticed the police vehicle and fled
because he was under the influence
of alcohol. All the other
respondents were asleep in the bakkie. When he finally came to a
stop, police approached the bakkie with
firearms, and all the
occupants, including the children alighted from the vehicle. Primer
residue tests were taken on their hands.
The respondents denied any
knowledge of the shooting incident, and the possession of the
firearm. The respondents were arrested and
detained. They were
released from custody in the afternoon of 2 January 2014, after blood
tests were taken from them at a hospital.
[9]
At the police station warning statements were taken and a docket was
opened. The respondents
were charged with the illegal possession of a
firearm and ammunition. They were then detained at the Gelvandale
police station, in
Port Elizabeth. Aggrieved by their arrest and
detention, the respondents instituted civil proceedings against the
Minister of Police
in the regional court, Port Elizabeth (the trial
court) on the grounds that the arrest without a warrant and
subsequent detention
were wrongful and unlawful.
[10]
It is against this background that the question of the arrest without
a warrant and the subsequent detention
of the respondents must be
decided. The appellant argued that the respondents’ arrest, without
a warrant, was lawful in terms of
ss 40(1)
(b)
,
40
(1)
(f)
and/or 40(1)
(h)
of the Criminal Procedure Act 51 of 1977
(CPA). The arresting officer acted in terms of s 205(3) of the
Constitution. Furthermore,
the subsequent detention of the
respondents was lawful and justified in terms of ss 39(3) and 50(1)
of the CPA.
[11]
Section 12(1)
(a)
of the Constitution enshrines the right to freedom and security of a
person, which includes the right not to be deprived of freedom
arbitrarily or without just cause.
[3]
Accordingly, where it is alleged that one has been unlawfully
detained, the State bears the burden to justify the deprivation of
liberty.
[4]
Law
[12]
Section 205(3) of the Constitution provides:
‘
The objects of the police
service are to prevent, combat and investigate crime, to maintain
public order, to protect and secure the
inhabitants of the Republic
and their property, and to uphold and enforce the law.’
In terms of the
relevant provisions of the
Criminal Procedure Act 51 of 1977
,
s 40
states that:
‘
(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,
other than the offence of escaping from lawful
custody;
(c)
. . .
(d)
. . .
(e)
. . .
(f)
who is found at any
place by night in circumstances which afford reasonable grounds for
believing that such person has committed
or is about to commit an
offence;
(g)
. . .
(h)
who is reasonably
suspected of committing or of having committed an offence under any
law governing the making, supply, possession
or conveyance of
intoxicating liquor or of dependence-producing drugs or the
possession or disposal of arms or ammunition.’
[13]
It is instructive to consider pertinent case law in regard to this
matter. In
Minister of Safety and Security v Sekhoto and
another
[2010] ZASCA 141
;
[2011] 2 All SA 157
(SCA);
[2011]
2 All SA 157
(SCA), this Court succinctly said, at para 6, that:
‘
As was held in
Duncan v
Minister of Law and Order
, the jurisdictional facts for a section
40(1)(b) defence 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.’
And at para 28:
‘
Once the jurisdictional facts
for an arrest, whether in terms of any paragraph of section
40(1) or in terms of section
43 are present, a
discretion arises. The question whether there are any constraints on
the exercise of discretionary powers
is essentially a matter of
construction of the empowering statute in a manner that is consistent
with the Constitution. In other
words, once the required
jurisdictional facts are present, the discretion whether or not to
arrest arises. The officer, it should
be emphasised, is not obliged
to effect an arrest. . . .’
Paragraphs 30 and
31:
‘
He
proceeded to say that an exercise of the discretion in question will
be clearly unlawful if the arrestor knowingly invokes the
power to
arrest for a purpose not contemplated by the legislator. This brings
me back to the fact that the decision to arrest must
be based on the
intention to bring the arrested person to justice. It is at this
juncture that most of the problems in the past have
arisen. Some
instances were listed in the judgment of the court below, namely an
arrest to frighten or harass the suspect, for example,
to appear
before mobile traffic courts with the intent to expedite the payment
of fines (
S v Van Heerden
(supra) 416g-h); to prove to colleagues that the arrestor is not a
racist (
Le Roux
(supra) paragraph 41); to punish the plaintiff by means of arrest
(
Louw
(supra) at 184j); or to force the arrestee to abandon the right to
silence (
Ramphal
(supra) paragraph 11). To this can be added the case where the
arrestor knew that the state would not prosecute.
The law in this regard has always
been clear. Such an arrest is not bona fide but
in fraudem legis
because the arrestor has used a power for an ulterior purpose. But a
distinction must be drawn between the object of the arrest and
the
arrestor's motive. This distinction was drawn by Schreiner JA in
Tsose
and explained by G G Hoexter J in a passage quoted with
approval by this court in
Kraatz
(supra) at 507C-508F. Object
is relevant while motive is not. It explains why the validity of an
arrest is not affected by the fact
that the arrestor, in addition to
bringing the suspect before court, wishes to interrogate or subject
him to an identification parade
or blood tests in order to confirm,
strengthen or dispel the suspicion. It would appear that at least
some of the high court judgments
under consideration have not kept
this distinction in mind.’
Further, at para 39:
‘
This would mean that peace
officers are entitled to exercise their discretion as they see fit,
provided that they stay within the
bounds of rationality. The
standard is not breached because an officer exercises the discretion
in a manner other than that deemed
optimal by the court. A number of
choices may be open to him, all of which may fall within the range of
rationality. The standard
is not perfection, or even the optimum,
judged from the vantage of hindsight and so long as the discretion is
exercised within this
range, the standard is not breached.’
Lastly, at para 42:
‘
While it is
clearly established that the power to arrest may be exercised only
for the purpose of bringing the suspect to justice
the arrest is only
one step in that process. Once an arrest has been effected the peace
officer must bring the arrestee before a
court as soon as reasonably
possible and at least within 48 hours (depending on court hours).
Once that has been done, the authority
to detain that is inherent in
the power to arrest has been exhausted. The authority to detain the
suspect further is then within
the discretion of the court.’
In
Naidoo v
Minister of Police and others
[2015] ZASCA 152
;
[2015] 4 All SA
609
(SCA), this Court stated at paras 40-41:
‘
And, as was explained by Van
Heerden JA in
Duncan v Minister of Law and
Order
1986 (2) SA 805 (A) at 818G–H,
once the jurisdictional requirements of the section are satisfied,
the peace
officer may, in the exercise of his discretion, invoke the
power to arrest permitted by the law. However, the discretion
conferred
by section 40(1) of the CPA must be properly
exercised, that is, exercised in good faith, rationally and not
arbitrarily.
If not, reliance on section 40(1) will not
avail the peace officer.’
It is now settled that the
purpose of the arrest is to bring the arrestee before the court for
the court to determine whether the
arrestee ought to be detained
further, for example, pending further investigations or trial.
(See
Minister of Safety and Security v Sekhoto and
another
[2010] ZASCA 141
; 2011 (5) SA 367 (SCA)
paras 30-3.) Thus it goes without saying that an arrest will be
irrational and consequently
unlawful if the arrestor exercised his
discretion to arrest for a purpose not contemplated by law. . . .’
Further, in
Raduvha
v Minister of Safety and Security (Centre for Child Law as amicus
curiae)
[2016] ZACC 24
;
2016 (10) BCLR 1326
(CC);
2016 (2)
SACR 540
(CC) para 44, the Constitutional Court stated:
‘
In other words the courts
should enquire whether in effecting an arrest, the police officers
exercised their discretion at all. And
if they did, whether they
exercised it properly as propounded in
Duncan
or as
per
Sekhoto
where the court, cognisant of the
importance which the Constitution attaches to the right to liberty
and one’s own dignity in our
constitutional democracy, held that
the discretion conferred in section 40(1) must be exercised
“in light of the Bill
of Rights”.’
Lastly, the
Appellate Division stated in
Duncan v Minister of Law and Order
[1986] ZASCA 24
;
[1986] 2 All SA 241
(A) at 243:
‘
The question whether a peace
officer "reasonably suspects" a person of having committed
an offence within the ambit of s
40(1)(
b
) of the Act is
objectively justiciable. And it seems clear that the test is not
whether a policeman believes that he has reason to
suspect, but
whether, on an objective approach, he in fact has reasonable grounds
for his suspicion.’
[14]
To sum up, the jurisdictional facts for a s 40(1)
(b)
defence 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.
The test is objective. It
requires
reasonable suspicion, but not certainty. The suspicion must be based
on factual grounds.
Thus,
the
enquiry is not whether Goeda subjectively suspected that the
occupants of the bakkie had been in possession of the firearm and
were involved in the shooting incident, but whether a reasonable
person in Goeda’s position, who had the same information at his
disposal would have considered that there were reasonable grounds for
suspecting that the occupants of the bakkie had been in possession
of
the firearm and were involved in the shooting incident at Malabar.
[15]
The respondents were questioned on the scene about the firearm, and
they all denied any knowledge thereof.
It was reasonable in the
circumstances to suspect that any one of the respondents, including
Ms Claasen, the fourth respondent who
was 16 years old, a minor, and
who was an occupant in the bakkie, was involved in the shooting
incident and that they had possessed
an illegal firearm and
ammunition.
[16]
Goeda testified that once he had instructed the occupants to
disembark from the bakkie, he stood outside
the police vehicle. He
could not say with certainty that he heard all of the information in
respect of the shooting incident over
the radio. It does not appear
from Goeda’s testimony that there was mention of any names
specifically communicated over the radio.
Even if this Court were to
accept that Goeda may have heard the names of the suspects involved
in the shooting incident (and that
not all of the respondents were
suspects) over the radio, a firearm with live ammunition was found to
have been thrown out of the
fleeing bakkie in which all the
respondents were occupants, which gave rise to a reasonable suspicion
that they were involved in
the shooting incident at Malabar and the
possession of the firearm. In such circumstances it was reasonable
for Goeda to arrest all
the respondents, in order to conduct further
investigation in this regard, as it could not be immediately
determined which of the
respondents may have potentially used the
firearm in the shooting incident. This was not unreasonable in the
circumstances.
[17]
Additionally, the fact that Goeda testified that he could not
remember whether he had been given the
names of the suspects does not
impact on the reasonableness of the arrests. He could not release
those of the respondents who were
not named as suspects, as this
information had not yet been verified. Significantly, it appears from
Sergeant Claasen’s evidence
that even though he had been given
names of the suspects at Malabar, he had gone to the police station
to verify the information
he had received at the shooting incident.
[18]
Thus, objectively considered, taking into account the conspectus of
information available to Goeda, the
arresting officer, I am of the
view that a reasonable suspicion existed in the mind of Goeda that
the occupants of the black Nissan
bakkie had committed an offence.
This is because the information available to Goeda was the following:
he had received information
via radio that a shooting incident had
occurred at Malabar; that the suspects had fled in a black Nissan
bakkie; he saw the bakkie
being chased by the marked police vehicle
G8 from the direction of the shooting incident; he saw the bakkie
driving in a reckless
manner, skipping traffic lights and ignoring
the sirens and trying to flee from the police over a distance between
15km to 20km;
he was informed by Schoenie during the chase that
something was thrown out of the bakkie; later a revolver was found in
the area
that Schoenie had observed an object being thrown from the
bakkie.
[19]
In the circumstances the arrests of all the respondents were lawful,
including that of the fourth respondent,
Ms Claasen.
In
terms of the
Child Justice Act 75 of 2008
,
an
arrest of a child should be resorted to when the facts are such that
there is no other, less invasive way of securing the attendance
of
such child before a court.
Ms
Claasen
was in a bakkie fleeing from the
police with occupants who were suspected of having been involved in
the shooting incident at Malabar.
During the pursuit, an object that
was thrown from the bakkie, in which she was an occupant, turned out
to be a firearm. Like the
other occupants, she was equally suspected
of being in possession of an illegal firearm and/or involved in the
shooting incident.
In the circumstances no criticism can be levelled
against the police for also arresting the fourth respondent for
further investigation.
Goeda’s conduct in arresting all the
respondents was eminently reasonable, lawful and justifiable in the
circumstances.
[20]
In view of all the aforegoing, the jurisdictional facts for the
arrest of the respondents in terms of
the subparagraphs in
s 40(1)
of
the CPA were present, and therefore a discretion arose. This
discretion was, on a conspectus of all the evidence, in my view,
properly exercised, in good faith, rationally and not arbitrarily.
[5]
[21]
I turn to consider whether the respondents’ detention was lawful.
In terms of
s 50
of the
Criminal Procedure Act 51 of
1977
:
‘
(1)
(a)
Any person who
is arrested with or without warrant for allegedly committing an
offence, or for any other reason, shall as soon as
possible be
brought to a police station or, in the case of an arrest by warrant,
to any other place which is expressly mentioned
in the warrant.
(b)
A person who is in
detention as contemplated in paragraph
(a)
shall, as soon as
reasonably possible, be informed of his or her right to institute
bail proceedings.
(c)
Subject to paragraph
(d)
, if such an arrested person is not released by reason
that—
(i) no charge is to be brought
against him or her; or
(ii) bail is not granted to him
or her in terms of
section 59
or
59A
,
he or she shall be brought before
a lower court as soon as reasonably possible, but not later than 48
hours after the arrest.’
[22]
Thus,
s 50
of the CPA allows the police to lawfully detain an
arrested person for a period not exceeding 48 hours before bringing
him/her before
a court or releasing him.
[6]
In this case,
the respondents were apprehended by the police after a high speed
chase on the night of 31 December 2013. They were
questioned and all
the respondents denied being at the scene of the shooting incident at
Malabar (even though eye witnesses placed
some of them at the
shooting scene). Further they denied any knowledge of the firearm
that was thrown out of the bakkie. One or some
of them must have had
knowledge of the firearm. This, and their version that they had slept
through the high speed chase was so improbable,
that it clearly
showed that the respondents were mendacious. Thus, as it could not be
established at the time of the arrest which
of the respondents had
been in possession of the firearm, t
hey
were then arrested
without a
warrant,
on
a suspicion of being in possession of an illegal firearm and
ammunition, and that they may possibly be involved in the shooting
incident at Malabar. They were
taken
to the Gelvandale police station where they were detained.
[23]
The validity of their arrest is not affected by the fact that Goeda,
in addition to arresting them, detained
them for further
investigation.
[7]
He took them
to the police station, as he intended to interrogate or subject them
to blood tests in order to confirm, strengthen
or dispel his
suspicion.
[8]
In the
circumstances, there appears to be no reason why through further
investigation, ie arrest, detention and questioning of the
suspects/respondents, pertinent information could not be obtained
about the shooting incident and the firearm. In fact, this is the
proper purview and mandate of the SAPS.
[24]
At the police station, the respondents were charged with the unlawful
possession of a firearm and ammunition
under crime docket Gelvandale
CAS 02/01/2014. In terms of the Notice of Rights the respondents were
advised of their rights at around
01h30 - 02h30 on 1 January 2014.
The official time of detention recorded by the police was at around
03h30 on 1 January 2014.
[25]
In addition, it also appears that another docket was opened in
respect of a murder charge, in which the
first, third, sixth and
ninth respondents, together with Romano Foster (who was also in the
bakkie, but not a respondent in this
case), were implicated. These
dockets were later combined, as the cases were ostensibly linked.
This warranted further investigation,
as the charges were serious, ie
murder, and the firearm found by Schoenie
and Van
Rensburg
was possibly the murder weapon.
[26]
Constable Jacques Grobler, who was on standby for the Gang Task Team
of the South African Police Service,
testified that he received the
docket for further investigation on 2 January 2014. This was for both
the murder and the unlawful
possession of a firearm charges. The
docket contained instructions from the senior public prosecutor to
obtain warning statements
from the respondents, arrange for the
drawing of blood and processing of DNA samples, and to release them,
except for Romano Foster.
The evidence linked the murder suspect
(Romano Foster) to the possession of the firearm. None of the
respondents were linked. The
warning statements were taken at about
14h00 and the blood drawn at the Dora Nginza Provincial Hospital at
approximately 15h30 on
the same day. The respondents were released on
2 January 2014.
When the respondents’ counsel
asked Grobler why those processes could not have been done on the 1
st
of January, he replied as follows:
‘
Your Worship, I only received
the docket myself on the 2
nd
and even if we received it on
the 1
st
I still don’t think we would have been able to
release them, because we had no district surgeon available on the 1
st
of January, due to the fact that it is a public holiday.’
[27]
An arrest made under
s 40(1)
(b)
of the CPA is not unlawful where the arrestor entertained the
required reasonable suspicion but intends to make further
investigation
after the arrest before deciding whether to release the
arrestee or whether to proceed with a prosecution as contemplated in
s 50(1)
of the CPA. From the point of view of the police, the
possibility existed that the illegal possession of the firearm that
the respondents
were suspected of could very well have been part of
the shooting incident at Malabar.
Further
investigation had to be carried out not at the scene of the arrest
but at the police station where they were detained.
This
would include obtaining statements of the witnesses mentioned at the
scene of the shooting, so as to verify the information at
the police
station. Thus, in
view of the aforegoing, the
subsequent detention of the respondents, including that of Ms
Claasen, was justified and lawful in terms
of
s 39(3)
of the CPA.
[28]
In this matter, the decision to arrest and detain the respondents
could not, on the basis of the factual
circumstances of this case be
wrong or inequitable. There is no basis to suggest that Goeda or any
of the other police officers involved
in the arrest or further
detention had an ulterior motive, acted irrationally and arbitrarily.
There was no mala fides
[9]
in
detaining them for further investigation.
[29]
The respondents were released from custody when during the further
investigation, it appeared that the
arrested persons could not be
linked to the commission of the crime. Thus, no criticism can be
levelled against the SAPS for arresting
and detaining all the
respondents, including Ms Claasen, for further investigation. The
docket was sent to the senior public prosecutor,
so as to determine
whether there was sufficient evidence to bring a charge against them.
The prosecutor informed the SAPS on 2 January
2014 that the
respondents should be released, only after blood samples for DNA
testing were taken. This the SAPS duly did and the
respondents were
released on 2 January 2014 at around 16h00. The respondents were
therefore in custody for less than 48 hours.
[30]
The conduct of the police was within the lawful parameters of
detention, as provided for in the legislation
(s 50
of the CPA).
There can be little doubt that the police officers charged with the
investigations acted with alacrity and the requisite
sense of urgency
after they received the docket on the morning of 2 January 2014.
[31]
In my view, Grobler’s explanation as to why it was not possible to
undertake the required processes
on the 1
st
of January 2014 was eminently reasonable. Notwithstanding, the
challenging task of having to take warning statements from all the
respondents, completing the necessary forms and transporting them to
the hospital for the drawing of blood, the police officers still
managed to complete the investigations in time to release the
respondents that same afternoon. It must be appreciated that the
taking
of blood tests for further investigation cannot, as a matter
of course, be expected to be done on a public holiday. Therefore, it
cannot be said that the appellant failed in its duty to secure the
earlier release of the respondents, as 1 January 2014 was a public
holiday. They were released as soon as it was established that ‘prima
facie proof of the arrested person’s guilt [was] unlikely
to be
discovered by further investigation’.
[10]
This was able to be done once the docket instruction was received on
2 January 2014.
[32]
Our constitutional dispensation has
brought about a primacy on individual human rights, particularly the
right not to be deprived
of freedom arbitrarily or without just
cause. However, to place unreasonable constraints on the SAPS would
hamper their law enforcement
functioning. Even though there may be
circumstances where criticism may justifiably be levelled against the
efficiency of the SAPS,
the SAPS ought to be allowed the proper scope
to arrest, detain and conduct necessary investigations, all within
the lawful bounds
as provided for by the legislature through, inter
alia,
s 50
of the CPA.
The
police are thus in terms of the law entitled to arrest and detain and
release a person within 48 hours, as happened in this case.
[33]
Assessed
objectively, in consideration of the totality of the information
available at the time of the arrest, the arresting officer,
Goeda,
entertained a reasonable suspicion which led to the lawful arrest and
detention of the respondents.
In
view of all the aforegoing, both the arrest and detention of the
respondents by the SAPS were lawful, beyond reproach and
justified.
[11]
It follows
that the order of the trial court must be set aside, including the
award of damages to the respondents. The appeal must
succeed.
[34]
In the result, the following order is made:
1
The appeal is upheld with costs.
2
The respondents are to pay the costs of the appeal, such costs to
include
the costs of two counsel.
3
The order of the full court is set aside and the following order is
substituted:
‘
1
The appeal is upheld with costs.
2
The judgment of the Port Elizabeth Regional Court, under case number
ECPERC
845/14, is set aside and replaced with the following order:
“
The plaintiffs’
claims are dismissed with costs.”.’
H K SALDULKER
ACTING
DEPUTY PRESIDENT
APPEARANCES
For
appellant:
F Petersen (with V Madokwe and L Hesselman)
Instructed
by:
State Attorney, Port Elizabeth
State Attorney,
Bloemfontein
For
respondent:
M du Toit
Instructed
by:

Carol Geswint Attorneys, Port Elizabeth
Lovius Block
Incorporated, Bloemfontein
[1]
The regional court, for the Regional Division of the Eastern Cape,
held in Port Elizabeth (the trial court) ordered the appellant
to
pay each of the eight respondents (the third respondent abandoned
his claim) R150 000, except the fourth respondent, who
was
awarded the sum of R200 000.
[2]
Primer residue is formed by the ignition of a chemical in the primer
when a firearm is discharged.
[3]
Constitution, s 12(1)
(a)
.
[4]
Zealand
v Minister for Justice and Constitutional Development and Another
[2008]
ZACC 3
;
2008 (6) BCLR 601
(CC);
2008 (2) SACR 1
(CC);
2008 (4) SA
458
(CC) para 24.
[5]
Duncan v Minister of
Law and Order
1986
(2) SA 805
(A) at 818G-H.
[6]
Minister of Safety and
Security v Sekhoto and another
[2010] ZASCA 141
;
[2011] 2 All SA 157
(SCA);
[2011] 2 All SA 157
(SCA) para 42.
[7]
Naidoo v Minister of
Police and others
[2015] ZASCA 152
;
[2015] 4 All SA 609
(SCA) para 41.
[8]
Sekhoto
para 31.
[9]
See
Minister of Safety
and Security v Sekhoto and another
[2010] ZASCA 141
;
[2011] 2 All SA 157
(SCA);
[2011] 2 All SA 157
(SCA) para 34.
[10]
Duncan v Minister of
Law and Order
1986
(2) SA 805
(A) at 821B–C.
[11]
See
Minister of Police
and Another v Du Plessis
2014 (1) SACR 217
(SCA) para 17.