Minister of Safety and Security v Sekhoto and Another (A282/2006) [2009] ZAFSHC 97; 2010 (1) SACR 388 (FB) (25 September 2009)

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[2009] ZAFSHC 97
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Minister of Safety and Security v Sekhoto and Another (A282/2006) [2009] ZAFSHC 97; 2010 (1) SACR 388 (FB) (25 September 2009)

FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No.: A282/2006
In the appeal between:
MINISTER
OF SAFETY AND SECURITY
Appellant
and
TSHEI
JONAS SEKHOTO
1
st
Respondent
OUPA
MOSUWU JOSEPH MADONSELA
2
nd
Respondent
also known as OUPA
JOHANNES SIBEKO
_____________________________________________________
CORAM:
HANCKE,
et
KRUGER,
et
VAN ZYL, JJ
_____________________________________________________
JUDGMENT:
HANCKE
et
KRUGER,
JJ
HEARD
ON:
31
AUGUST 2009
_____________________________________________________
DELIVERED
ON:
25
SEPTEMBER 2009
_____________________________________________________
1
INTRODUCTION
[1] The
respondents claimed damages for wrongful arrest, unlawful detention
and malicious prosecution in the magistrates’ court,
Vrede. The
magistrate upheld the claim for wrongful arrest and granted the first
respondent R5 000,00 damages and second respondent
R8 000,00. The
appellant appealed to this court and the respondents lodged a
counter-appeal.
The
basis for the magistrate holding the arrest unlawful was the
following:
“
Dit is duidelik dat veral eiser 1
bekend was aan die polisie. Geen getuienis was aangebied dat daar ‘n
gevaar bestaan dat of
eiser 1 of 2 nie hul verhoor sou bywoon nie, of
redes waarom hulle nie gedagvaar of gewaarsku was nie. Inteendeel
die hof wat
borg toegestaan het, het ook so gevoel, daarom dat borg
wel toegestaan was.”
2
THE
FACTS
[2] Both respondents were
arrested by Inspector Van der Watt without a warrant. First
respondent was arrested on 15 July 2002 and
second respondent on 16
July 2002. Both were detained at the Vrede Police Cells until their
court appearances at Vrede on 18 July
2002, whereafter first
respondent was again detained at Vrede Police Cells until bail was
fixed by the court on 23 July 2002.
After 18 July 2002 second
respondent was detained at Standerton Prison until his release on 26
July 2002.
3
THE
PARTICULARS OF CLAIM
[
3] The
particulars of claim contained three claims:
“
4.
CLAIM
I:
On
the
15
th
July 2002 and at Ntshwanatsatsi Cornelia district Vrede, members of
the police force, stock theft unit, amongst which was Captain

Odendaal, Sergeant C.A. van der Watt, Inspector Mbongo and Sergeant
Tsotetsi unlawfully, intentionally and unreasonably arrested
the
first plaintiff who had found the said police officers at first
plaintiff’s father’s house. First plaintiff was arrested
without
a warrant of arrest.
5.
Second plaintiff
was also unlawfully, intentionally and unreasonably arrested without
a warrant, on the 16
th
July 2002, by Sergeant Van der Watt and Sergeant Tsotetsi who had
driven from Vrede Police Station together with the first plaintiff,

to go and arrest second plaintiff at his house at Goedheid farm,
district Vrede.
6.
Plaintiffs contend
that the said arrests infringe on their liberty and constituted an
injuria
,
as a consequence of which each suffered damages in the amount of
Fifty Thousand (R50 000,00) rand, for which defendant is held

vicariously liable.
7.
CLAIM II:
After the said
police officers mentioned in paragraph 4 above, had arrested the
first plaintiff, they drove the first plaintiff
to Vrede Police
Station and detained him until first plaintiff was released on bail
on
the
25
th
July 2005.
Second plaintiff
was also detained at Vrede Police Station after having been arrested
on the 16/7/02, was remanded in custody and
transferred to Standerton
prison, where he was released on bail on the 26
th
July 2002.
8.
It is the first and
second plaintiffs’ contention that their detention was unlawful,
intentional and unreasonable and constituted
a
injuria
as a result of which each suffered damages in the amount of twenty
five thousand (R25 000,00) rand each. Defendant is held vicariously

liable for payment of the said amounts.
9.
CLAIM III:
Both plaintiffs
were prosecuted under case number C40/2002 in the Vrede Magistrates’
Court sitting at Cornelia on the 3
rd
November 2002, proceeded again on the 21
st
January 2003, on the 18
th
March 2003 and were both discharged at the end of the State case on
the 31
st
March 2003.
10.
It is both
plaintiffs’ contention that the prosecution was unlawful and
malicious
alternatively
that the prosecution was false and the said police officers knew that
the prosecution was false as there was no basis for the said

prosecution. As a consequence of the said malicious and/or false
prosecution, the plaintiffs suffered damages in the amount fifty

thousand (R50 000,00) rand each, for which the Honourable Minister is
held vicariously liable.”
[
4] As
far as claim III is concerned, it is clear from the record that the
requirements for malicious prosecution, namely that the
arrest or
prosecution be instigated without reasonable and probable cause and
with malice or
animo
iniuriandum
were not satisfied. Mr. Pienaar, counsel for the respondents, in our
view correctly conceded that the respondents’ claim in
this regard
has no merit and it is therefore unnecessary to deal with this claim
any further.
[
5] The
particulars of claim in this case confuse and muddle the issues
rather that clarify them. Put simply, what the magistrate
had to do
was to decide whether the arrest of the first respondent on 15 July
2002 and subsequent detention until he was released
on bail on 23
July 2002 were unlawful, and, in respect of second respondent whether
his arrest on 16 July 2002 and subsequent detention
until 26 July
2002 were unlawful.
4
THE
SPECIAL PLEAS
[6]
Appellant’s
First Special Plea
Against
second respondent’s
second
claim (unlawful detention), appellant raised a special plea of
jurisdiction, alleging that the Vrede Magistrate’s court
does not
have the power to hear a claim in respect of detention outside its
area of jurisdiction.
[
7]
Appellant’s
Second Special Plea
Appellant
contended that both respondents were brought before court on 18 July
2002 whereafter the magistrate remanded them in custody.
Appellant
contended that it is not liable for the detention of the respondents
after 18 July 2002; the Minister of Justice is
the party who should
have been cited in respect thereof.
[
8]
Magistrate’s
judgment on Special Pleas
The
magistrate treated both special pleas together in his judgment given
at the beginning of the trial before evidence was led.
The
magistrate held that, as soon as an accused appears before court, the
prosecutor is
dominus
litis,
and the Minister of Justice should have been cited in respect of
detention after 18 July (the date of appearance in court),
irrespective
of whether such detention was in Vrede, or at Standerton
(as was the case with 2
nd
plaintiff). The magistrate as a result of his findings dismissed the
second and third claims; overlooking the fact that the third
claim
(malicious prosecution) was not subject to any special plea, and the
fact that the first special plea concerned only the
second
respondent. The magistrate’s findings on the special pleas are
clearly wrong, but in view of our conclusion it is unnecessary
to
deal with this issue.
5
THE
NOTICE OF APPEAL
[
9] In
its Notice of Appeal appellant advances the ground that the
magistrate applied the law on arrest incorrectly by finding that
the
respondents had not been lawfully arrested. We have no problem with
this ground of appeal.
6
THE
NOTICE OF COUNTER APPEAL
[
10] After
the appellant’s appeal was noted, the respondents noted a counter
appeal on the following grounds:
“
1.
The evidence as a whole favours the
respondents’ case and the court should have found in favour of the
respondents on all claims.
2.
There was no dispute of facts but what
was in issue was the interpretation of the law, particularly
respondents’ constitutional
rights.
3.
Once a person’s
constitutional rights are found to have been transgressed, the onus
to justify the actions is upon the appellants.
They must place all
facts that are indicative of what would, objectively, be found to be
“reasonable” and/or reasonable grounds.
At all material times
the courts ought to approach the evidence through the
prism
of the Constitution.
4.
As the arrest and
the subsequent detention form one and the same continuous conduct,
the court erred in separating this one and
the same
unlawful
conduct.
4.1
If the arrest was unlawful and
wrongful there will be no reasonable grounds to justify the
detention.
5.
The courts take the
deprivation of liberty and freedom of a person in a serious light and
award substantial satisfaction for plaintiffs.
The court erred in
its assessment of quantum in
its
judgment.”
[1
1] A
cross-appeal is for convenience heard at the same time as the main
appeal. A cross-appeal, like any other, must therefore
be duly noted
and a cross-appeal which has not been properly noted, cannot be
prosecuted.
[
12] The
question is whether the notice of appeal against the magistrate’s
decision to dismiss claim II (unlawful detention) is
in accordance
with the law. Rule 49(3) of the Superior Court reads as follows:
“
The notice of
appeal shall state whether the whole or part only of the judgment or
order is appealed against and if only part of
such judgment or order
is appealed against,
it
shall state which part and shall further specify the finding of fact
and/or ruling of law appealed against and the grounds upon
which the
appeal is founded.”
[
13] The
four objects of a notice of appeal are:
“
(a)
to
enable the magistrate to frame his reasons for judgment;
(b)
to
give the respondent an opportunity of abandoning the judgment;
(c)
to
inform the respondent of the case he has to meet;
(d)
to
notify the Appeal Court of the points to be raised.”
(Erasmus:
SUPERIOR
COURT PRACTICE
(Service
33, 2009) B1-356A;
BEUKMAN
v VAN NIEKERK
1966 (1) SA 729
(O) at 730 G - H;
KILIAN
v GEREGSBODE, UITENHAGE
1980 (1) SA 808
(A) at 815 C - F.)
[14] The
requirements of Rule 49(3) are peremptory. Therefore the court of
appeal will exact strict compliance with the requirements
of the
sub-rule and will relax the prescribed practice only in cases where
it is absolutely plain what issue of law is going to
be raised under
a notice of appeal. (
ELS
v MAREE
1952 (3) SA 758
(O) at 760 E - G.) An invalid notice of appeal
cannot be validated by the court of appeal allowing an amendment.
(
SONGONO
v MINISTER OF LAW AND ORDER
1996 (4) SA 384
(E) at 385 F – 386 A.)
[15] A
ground of appeal is bad
“…
if it is so
widely expressed that it leaves appellant free to canvass every
finding of fact and every ruling of law made by the
court
a
quo
in relation to the subject matter of the appeal; or which specifies
the findings of fact or rulings of law so vaguely as to be
of no
value either to the court or the respondent; or which, in general,
fails to specify clearly what the grounds of appeal really
are, for
the respondent is entitled to be informed, in the notice of appeal,
in clear and unambiguous terms exactly what case he
must be prepared
to meet on appeal.”
(Erasmus:
SUPERIOR
COURT PRACTICE
op
cit
B1-357.)
[1
6] As
far as ground 5 is concerned, the notice of appeal is lodged in
respect of the amount awarded by the magistrate with regard
to claim
I. No grounds or reasons are advanced. The first and second
respondents failed to specify in clear and unambiguous terms
what the
grounds of the counter appeal are. Accordingly the counter appeal
should be dismissed (
KILIAN
v GEREGSBODE, UITENHAGE
,
supra
,
at 815 E - F).
7
ARREST
AND DETENTION
[
17] A
distinction is drawn between
arrest
and
detention
.
In
MAHLONGWANA
v KWATINIDUBU TOWN COMMITTEE
1991
(1) SACR 669
(E) where the following is stated on 675 d – f:
“
It is clear that
the mere act of arrest itself involves deprivation of liberty, but
our law recognises a clear distinction between
the act of arrest,
which may occur anywhere, and the act of detention in custody, which
involves incarceration after the arrest,
and pending the taking of
further procedural steps. The power granted to ‘detain’ may in
particular circumstances include
the power to arrest. See
R
v Moquena
1932 OPD 52.
However, in my view, the power to arrest does not
include the power to detain save insofar as such detention may be a
concomitant
to the arrest itself. Arrest is the act by which a free
person is apprehended, if necessary by the use of force. Once the
arrest
has been effected, the authority of the person effecting the
arrest insofar as any further detention is concerned, ceases.
S
v Van Vuuren
1983 (4) SA 662
(T) at 668E. Any subsequent detention, which
involves restraint in confinement for a specified or unspecified
period of time,
must be in terms of an authority to detain, and is
not automatically conferred, without such authority, on the person
authorised
to arrest.”
[18] In
the present matter the detention was a result of the arrest and
therefore interlinked with each other. The lawfulness (or
not) of
the detention is therefore dependent on a finding with regard to the
lawfulness (or not) of the arrest. Even if arrest
and detention can
constitute separate causes of action in certain circumstances (as
pleaded here in the particulars of claim),
the fact of detention, as
well as the length thereof, must have a bearing on damages, if it is
found that the arrest was unlawful.
[1
9] In
view of the conclusion reached in this regard, it is unnecessary to
decide whether the magistrate’s finding was correct
in respect of
claim II, save to say that the fact that a person is unlawfully
detained can be regarded as an aggravating factor
in assessing
damages.
8
THE
LAW ON ARREST WITHOUT A WARRANT
[2
0] Section
40(1) provides:
“
A peace officer may without warrant
arrest any person –
(b) whom he reasonably suspects of
having committed an offence referred to in Schedule 1, other than the
offence of escaping from
lawful custody;
…
(g) who is reasonably suspected of
being or having been in unlawful possession of stock or produce as
defined in any law relating
to the theft of stock or produce;”
[21] The
right to arrest without a warrant under section 40(1)(b) is limited
to Schedule 1 offences, including “theft, whether
under the common
law or a statutory provision.” Section 40(1)(b) requires an
objective standard of a reasonable person. (
DUNCAN
v MINISTER OF LAW AND ORDER
1986 (2) SA 805
(A) at 814 D – E). Section 9(1) of the Stock Theft
Act 57 of 1959 authorises the arrest of a person “upon reasonable
suspicion
that such other person has committed the offence mentioned
in section two or four” (section 2 refers to a person in possession

of stock or produce who cannot give a satisfactory account of such
possession).
[22] Section
40(1)(b) of Act 51 of 1977 uses the word “may”. In
TSOSE
v MINISTER OF JUSTICE AND OTHERS
1951(3) SA 10 (A) at 17F – H Schreiner JA said:
“
An arrest is, of
course, in general a harsher method of initiating a prosecution than
citation by way of summons but if the circumstances
exist which make
it lawful under a statutory provision to arrest a person as a means
of bringing him to court, such arrest is not
unlawful even if it is
made because the arrest
or
believes that arrest will be more harassing than summons.”
And at 17H:
“
But there is no rule of law that
requires the milder method of bringing a person into court to be used
whenever it would be equally
effective.”
[23] Counsel
for respondents submits that, in view of the Constitution, there is
now a rule of law that requires the milder method
of bringing a
person to court, whenever possible, with reference to
RALEKWA
v MINISTER OF SAFETY AND SECURITY
2004 (1) SACR 131
(T) par [11] – [12]. Apart from the appellant’s
onus to prove that the arresting officer believed on reasonable
grounds that
the arrest is objectively justifiable, by virtue of the
Bill of Rights there is also an onus on appellant to prove that there
were
objective reasonable grounds for the infringement of the
suspects’ rights under the Constitution (
LOUW
AND ANOTHER v MINISTER OF SAFETY AND SECURITY AND OTHERS
2006 (2) SACR 178
(T) at 185a – e and 187e – f).
[24] Counsel
for appellant does not disagree with the proposition that the arrest
should also be assessed in terms of the Constitution.
Counsel for
appellant says the freedom of the suspects (first and second
respondents) as stipulated in section 12 of the Constitution
had to
be weighed up against the protection and security of the property of
the community as provided for in section 205 of the
Constitution.
Section 12(1)(a) of the Constitution reads:
“
Everyone has the right to freedom
and security of the person, which includes the right –
a) not to be deprived of freedom
arbitralily or without just cause”
Section 205 (3) of the
Constitution states:
“
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 the Regulations for
the South African Police Service relating to the Code of Conduct for
members (Government Gazette 27642 of
June 2005) it is provided that
every member of the police service must sign a form with inter alia
the following content:
“
2(3) In order to achieve a safe and
secure environment for all the people of South Africa I undertake to
–
…
(e) uphold and protect the fundamental
rights of every person
…
(g) exercise the
powers conferred upon me in a responsible and controlled manner; …”
From
sections 12 and 205 of the Constitution, as well as the undertaking
signed by members of the police service in compliance with
the Code
of Ethics, it is clear that arresting officers have a duty to uphold
constitutional rights, including the right to freedom.
This includes
the right not to be arrested when there is no need for arrest.
[25] In
TSOSE
v MINISTER OF JUSTICE AND OTHERS
(
supra
)
at 17H (quoted above) Schreiner JA said that there is no rule of law
that requires the milder method of bringing a person into
court to be
used whenever it would be equally effective. This statement was held
to correctly set out the existing law by Goldblatt
J in
CHARLES
v MINISTER OF SAFETY AND SECURITY
2007 (2) SACR 137
(W) at 144a. In
RALEKWA
v MINISTER OF SAFETY AND SECURITY
(
supra
)
par [11] De Vos J after quoting the above statement from
TSOSE
,
held that the enquiry now “starts off on the premise that the right
of an individual to personal freedom is a right which should
be
jealously guarded”. The statement in
TSOSE
(
supra
)
that an arresting officer is entitled to use the harsher means of
initiating a prosecution, is no longer good law post-constitutionally

(
RALEKWA
(
supra
)
loc
cit
).
In
LOUW
v MINISTER OF SAFETY AND SECURITY AND OTHERS
(
supra
)
at 185i – 186c Bertelsmann J echoed the sentiments of De Vos J.
[26] The
“milder method” argument harks of the least restrictive
alternative found e.g. in mental health law. The real intent
is to
state that there should not be an infringement of liberty if that can
be avoided. The point of departure at arrest should
not be the
search for the mildest form of infringement and then to find that if
the mildest (or even a milder) form of infringement
was not used, the
action was unlawful. The enquiry should rather be to consider all
the circumstances in the light of legislative
provisions and
constitutional rights.
[2
7] The
Constitution provides that a court, when interpreting legislation
(e.g. section 40), must promote the spirit, purport and
objects of
the Bill of Rights. A person’s right not to be deprived of freedom
arbitralily or without just cause is a basic right
(section 12(1)(a)
of the Constitution). Section 205(3) of the Constitution makes it
clear that members of the police service must
protect and secure the
inhabitants of the Republic and uphold and enforce the law (including
the Constitution). Rather than a
weighing up of the interests of the
community against the rights of citizens, the investigation should
turn on the question whether
the rights of persons have been
infringed in the circumstances of the particular case. An arrest
should be considered in the light
of the circumstances of the
specific case. As stated by the Constitutional Court, “the
constitutionality of an arrest will almost
invariably be heavily
dependent upon its factual circumstances.” (
MINISTER
OF SAFETY AND SECURITY v VAN NIEKERK
2008 (1) SACR 56
(CC) par [17]).
[
28] In
assessing the lawfulness of an arrest made without a warrant the
enquiry entails the following:
Were
the jurisdictional facts required by section 40 present? The
jurisdictional facts are:
The arrester must be a
peace officer.
The arrester must
entertain a suspicion.
It must be that the
arrestee committed an offence referred to in Schedule I (other than
escaping).
That suspicion must
rest on reasonable grounds.
(
DUNCAN
(
supra
)
818 F – H).
(b) Was the purpose of
the arrest to bring the arrested person before court?
OR:
(i) to
frighten or harass such person (
TSOSE
(
supra
)
at par 17 C – D; as with e.g. arrest to appear before mobile
traffic courts with the intent to expedite the payment of fines
(
S
v VAN HEERDEN EN ANDER SAKE
2002 (1) SACR 409
(T) at 416g-h)).
(ii) to
prove to colleagues that the arrester is not a racist (as in
LE
ROUX v MINISTER OF SAFETY AND SECURITY AND ANOTHER
2009 (4) SA 491
(N) par [41].
(iii) To
punish the plaintiff by means of arrest (as in
LOUW
v MINISTER OF SAFETY AND SECURITY
(
supra
)
at 184j).
(iv) To
force the arrestee to abandon the right to silence in section
35(3)(h) of the Constitution (as in
RAMPHAL
v MINISTER OF SAFETY AND SECURITY
,
Eastern
Cape High Court case CA203/2007 18 February 2008 per Plasket J, par
[11]).
If the arrest was made
for any of these reasons, or for another purpose not falling within
the jurisdictional ambit of section 40,
the arrest will for that
reason alone be unlawful.
(c) The
lawfulness of a arrest is fact-specific (
MINISTER
OF SAFETY AND SECURITY v VAN NIEKERK
2008 (1) SACR 56
par [17]).
(d) Did
the arrester appreciate that an arresting officer has a discretion
whether to arrest without a warrant or not, and did the
arrester
consider and apply that discretion? (
GELLMAN
v MINISTER OF SAFETY AND SECURITY
[2007] ZAGPHC 269
;
2008
(1) SACR 446
(W) par [94];
RAMPHAL
(
supra
)
par [10]. An arresting officer must investigate explanations offered
by the suspect (
LOUW
(
supra
)
at 184 b – c).
(e) Were
there grounds to infringe upon the constitutional rights as to
security of the person which every person has under section
12 of the
Constitution? (
LE
ROUX v MINISTER OF SAFETY AND SECURITY
(
supra
)
par [43]). If a suspect –
(i) does not present a
danger to society
(ii) will not abscond
(iii) will not harm self
or others
(iv) is not in danger of
being harmed by others
(v) may
be able and be keen to disprove the police allegations
arrest
will ordinarily not be the appropriate way of ensuring the suspect’s
presence in court (
LOUW
(
supra
)
at 185 d – e).
(f) Did
the arrester consider other means to bring the suspect before court?
Section 38 of The Criminal Procedure Act refers to
means of securing
attendance of the accused in court, and refers to arrest, summons,
written notice and indictment. The latter
can be left out of
consideration because it deals with securing the attendance of the
accused in high courts (section 144). A
written notice is used where
the anticipated fine will not be more than R2.500 (section 56; GN 239
in GG 24393 of 14 February 2003).
Summons can be used where arrest
is not to be made (section 54). A method not mentioned in the Act,
but used by the police in
practice is simply to warn a suspect to be
at court on a given day at a particular time, otherwise he or she
will be arrested and
brought to court. This is the sensible way of
dealing with persons in respect of whom there is no fear that they
will abscond,
and who normally have a fixed abode and place of work.
It can be used in all cases – especially in respect of petty
charges,
and even in respect of some serious charges, depending on
the circumstances of the case.
(g) The
need for further investigation after the suspect has been arrested is
a subsidiary factor which can be borne in mind. Although
arrest
should be made for the purpose of assuring the accused’s presence
in court, and not for some ulterior motive, one must
not lose sight
of the fact that the effect of arrest is detention for up to 48 hours
before bringing the accused before court (section
50 of Act 51 of
1977). The legislature contemplated that further investigations
subsequent to arrest could lead to the arrestee’s
release or
prosecution (
DUNCAN
(
supra
)
at 819 G – I). An arrest without a warrant is not unlawful merely
because the arrester intends to make further investigations
before
deciding to release the arrestee or to proceed with a prosecution
contemplated by section 50 (1) of Act 51 of 1977 (
DUNCAN
(
supra
)
at 820 B – C). However, if obtaining information from the arrestee
is the main purpose,
section 205
of the
Criminal Procedure Act 51 of
1977
should be used, not an arrest without a warrant.
(
h) The
fact that two or more persons are involved in the criminal activity
being investigated, is a relevant factor. When members
of a gang or
syndicate or racketeering enterprise are sought because of a
suspicion against them, it can be important, from a crime

investigation point of view, that they be arrested simultaneously,
also if they are at separate places so as not to be able to

communicate with each other, which communication could prejudice the
investigation. Evidence may be destroyed or alibis fabricated.
The
fact that persons are arrested on related charges is a relevant
consideration in assessing the lawfulness of the arrest.
(i) The
possibility that exhibits can be destroyed or hidden is a relevant
factor.
Police
standing order (G) 341 lists further exceptions to the general rule
that the object of arrest should be to secure attendance
at a trial
(Standing Order (G) 341 is quoted in footnote 13 in
MINISTER
OF LAW AND ORDER v VAN NIEKERK
(CC) (
supra
).
The approach of the arresting officer should be as set out in
GELLMAN
(
supra
)
par [97].
9
THE ARRESTS
[
29] The
detailed facts in this case are the following. The two respondents
were arrested on consecutive days by the same police
official without
a warrant. Inspector Van der Watt, who was no longer in the police
service when he testified, received a report
of stolen stock from an
informer. On 15 July 2002 he and two colleagues went to first
respondent’s father’s place of abode.
In an outbuilding they
found bags with seven sheepskins in them. Sekhoto Senior told them
those skins belonged to his son, first
respondent. When first
respondent arrived the police asked him for an explanation but first
respondent said he could not remember
where he bought the skins, he
buys sheep at many places. First respondent had no identification
certificates in respect of the
skins. The seven sheepskins were all
marked with an “N”. Van der Watt found it strange that a person
who had seven skins
with the same mark could not remember where he
got them. He arrested first respondent under section 2 of the Stock
Theft Act.
Section 2 reads:
“
2.
Failure
to give satisfactory account of possession of stock or produce.
–
Any
person who is found in possession of stock or produce in regard to
which there is reasonable suspicion that it has been stolen
and is
unable to give a satisfactory account of such possession shall be
guilty of an offence.”
[30] The
next day, 16 July 2002 sergeant Tsotetsi informed Van der Watt at the
police station that first respondent wanted to talk.
First
respondent told Van der Watt that he would take them to the person
from whom he had got the sheep. He took them on the
dirt road to
Cornelia. First respondent sat on the back of the bakkie. At all
the intersections first respondent indicated through
the rear window
of the bakkie where they should go. It was quite a long distance
with many turns. Eventually they turned in at
a farm where first
respondent said they would find the person. Sergeant Tsotetsi spoke
to a woman there, who said the Sibeko they
were looking for was her
husband, and told them where they could find him. They left in the
bakkie and found second respondent.
Van der Watt told second
respondent that a person they had arrested had informed them that he
had got sheepskins from him. Second
respondent denied this and said
he had never given any sheep or skins to first respondent. First
respondent then told second respondent
to tell the truth. Van der
Watt arrested second respondent. Van der Watt informed second
respondent he was arresting him because
he was stealing sheep
together with first respondent. They were detained in the police
cells that night. On the 17
th
the police took the two respondents to their offices and on the 18
th
they were taken to court. The court did not grant bail and they were
remanded in custody. On 23 July 2002 the respondents were
granted R1
000 bail. First respondent went out on bail on 23 July 2002. A few
days later, first respondent paid second respondent’s
bail, and
second respondent was released on 26 July 2002. After a few
postponements the criminal trial took place at Cornelia.
Both
respondents were discharged at the end of the state case.
10
THE ONUS OR DUTY TO ADDUCE EVIDENCE IN RELATION TO ARRESTEE’S
CONTITUTIONAL RIGHTS
[
31] This
question is relevant at two stages: at arrest and when the court is
dealing with a claim for wrongful arrest. Because
deprivation of
freedom is
prima
facie
unlawful, there has never been doubt that the burden to prove lawful
arrest in a court of law is on the defendant (arrester) (
MAY
v UNION GOVERNMENT
1954 (3) SA 120
(N) at 124 G – H;
INGRAM
v MINISTER OF JUSTICE
1962 (3) SA 225
(W) at 227 D – E). The arrester bears the onus to
prove that the arrest was justified in law (
MINISTER
OF LAW AND ORDER AND OTHERS v HURLEY AND ANOTHER
1986 (3) SA 568
(A) at 589 E – F). The next question relates to
the stage of the arrest. When effecting an arrest, a police official
must make
basic enquiries to ensure that constitutional rights will
not be infringed by an arrest. Such would relate to a place of
abode,
employment, family, passports – all pointing to whether the
suspect is likely to abscond and the ease or difficulty of tracing

such person.
[32] Mr
Pienaar contends that the police did not give any reasons why arrests
were necessary. Inspector van der Walt gave no details
of enquiries
he had made relating to the risk of flight. Mr Pienaar argues that
the burden was on the police to place evidence
before the court that
they could not use a milder method to secure the respondents’
presence at court.
[33] There
is not an onus on a person to prove a constitutional right: the duty
is on the court to enforce such right. Courts
have the duty to
enforce constitutional rights, as provided in section 39(2) of the
Constitution. The arrester must show that
constitutional rights were
not infringed by the arrest. That entails, at the stage before
arrest, to make enquiries whether arrest
is necessary and whether the
arrest will infringe upon the arrestees’ constitutional rights.
There is a duty on the arrester
to adduce such evidence and such
evidence forms part of the onus on the arrester to prove lawfulness
of the arrest.
1
1
APPLICATION OF THE LAW TO THE FACTS
(a) Jurisdictional
requirements of section 40.
[
34] Many
cases dealing with arrest without a warrant under section 40
interpreting constitutional rights were decided on the basis
that the
jurisdictional requirements of section 40, as these have existed
since pre-constitution days, and as set out in
TSOSE
(
supra
)
in 1951, were not complied with. Some are referred to under the
discussion of section 40 above, where arrests were made for other

reasons than to bring the suspect into court. In this case the
magistrate found that Inspector van der Watt had reasonable grounds

to arrest the respondents. That finding appears to be correct.
(b)
Respondents
’
Constitutional rights
[3
5] The
next question is whether Inspector van der Watt appreciated that he
had a discretion to arrest or not, and whether he applied
that
discretion, or whether the constitutional rights of the respondents
were infringed by the arrest with reference to the criteria
set out
above. The main thrust is the danger of flight.
[
36] The
facts here were that the first respondent was described as unemployed
but he operated a taxi without a permit. It appears
that the police
knew the first respondent as a person who operated a taxi. Inspector
van der Watt should have made enquiries to
determine whether the
first respondent was likely to abscond, and whether he would stand
his trial. No reasons were given why
further investigations into the
alleged crime could not be made while the first respondent was out on
warning. As to the second
respondent, he was implicated by the first
respondent and further investigation was needed. The only evidence
against him at arrest
was the allegation of the first respondent.
Second Appellant had a fixed abode and fixed employment on the farm
where he lived.
Van der Watt made no enquiries to determine the risk
of flight. Van der Watt did not appreciate that he had a discretion
and
he did not exercise such discretion. If Van der Watt used his
discretion and made further enquiries about the respondents, he would

have realised that they had fixed abodes, were known to the local
police, posed no threat of flight, and would stand their trial.
By
not making those enquiries and by not using his discretion, the
constitutional rights of the respondents were infringed. The
arrests
were unlawful, and the magistrate’s order should stand. As to the
quantum, it is not clear on what basis and for what
reasons the
magistrate made his awards. The awards appear low, but there are no
grounds upon which we can interfere.
12
ORDER
1. The
Appeal
is
dismissed with costs.
2. The
Counter Appeal is dismissed with costs.
3. For the benefit of the
taxing master it is recorded that the counter-appeal took up less
than 10% of the argument on appeal.
__
____________
SPB HANCKE, J
I
concur.
____________
A KRUGER, J
I
concur.
____________
C
VAN ZYL, J
On
behalf of appellant: Adv. A. Bester
Instructed
by:
State
Attorney
BLOEMFONTEIN
On
behalf of respondents: Adv. C.D Pienaar
Instructed
by:
Lovius-Block
BLOEMFONTEIN
/sp
/wm