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[2009] ZAKZPHC 8
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Le Roux v Minister of Safety and Security and Another (AR436/07) [2009] ZAKZPHC 8; 2009 (4) SA 491 (N) ; 2009 (2) SACR 252 (KZP) (17 March 2009)

REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
NATAL
PROVINCIAL DIVISION
CASE NO:
AR436/07
In the matter between :
T LE ROUX                                                                                                            Appellant
and
THE MINISTER OF SAFETY AND
SECURITY
First Respondent
M
NEL
Second
Respondent
JUDGMENT
MSIMANG,
J
1]       I
have had an opportunity of perusing the judgment of my brother
Madondo, J in this
matter and, though I concur with the order that he
proposes as well as the reasons therefor, for the sake of emphasis, I
have decided
to add further reasons for that order and the facts will
only be repeated in this judgment in so far as that repetition will
be
necessary to illustrate that emphasis.
2]       This
is an appeal from a decision of the Magistrate’s Court,
Newcastle, dismissing
appellant’s claim for damages arising out
of an incident that had occurred on 23 June 2006 during which the
appellant had
been arrested and detained at the Magistrate’s
Court holding cells at the instance of the second respondent, acting
in the
course and within the scope of his employment with the first
respondent.   For ease of reference, I shall refer to the

parties to this appeal by their respective designations in the Court
a quo.
3]       The
facts underlying this appeal are common cause and are the
following.
The second defendant is a member of the South
African Police Service and was allocated a docket and assigned to
investigate a certain
incident involving a crime of reckless and
negligent driving that had occurred on 16 April 2006.
Through her investigations
she was able to establish that the
plaintiff was a suspect in the commission of the offence.
Her visit at the
plaintiff’s residence proved to be fruitless
as the plaintiff was not at home.  Having interviewed
plaintiff’s
father about the incident, she left a message for
the plaintiff to contact her.   Indeed, on the same day the
plaintiff
made telephonic contact with her and, after the allegations
against him had been explained, he was requested to see her at the
police station.   On the following day the plaintiff duly
reported at the office of the second respondent and the latter
again
explained to him the allegations which had been made against him and
apprised him of his constitutional rights.
In view of the
fact that the plaintiff was co-operative and seemed destined to
disprove the allegations against him and after having
considered all
the relevant circumstances, the second defendant decided not to
arrest him but informed him that he would be required
to attend Court
on the following day, but that before doing so, he should report at
the office of the second defendant and the
latter would then take his
profile and finger prints, obtain a warning statement from him,
formally charge him and take him to
Court.   Indeed, the
plaintiff reported at the office of the second defendant on the
following morning and, after the
procedural requirements had been
complied with, the second defendant took the plaintiff to the holding
cells where he handed him
to her fellow police officers for
detention.   She thereafter proceeded to the prosecutor
with the docket and recommended
that, upon his appearance, the
plaintiff be released on bail which should be fixed at R500.00.
The plaintiff
was duly held in the holding cells until he was called
upon to appear before Court when bail was fixed and he was released
as recommended
by the second defendant.    Explaining
her sudden change of heart regarding the arrest and detention of the
plaintiff,
the second defendant testified that, had she not arrested
and detained the plaintiff, she feared that the black members of the
South African Police Service would have accused her of favouring the
plaintiff due to the colour of his skin.
4]
It was as a result of the
aforementioned conduct of the second defendant that the plaintiff
instituted action for damages for wrongful
and unlawful arrest
against the defendants, alleging that, at all material times the
second defendant acted in the course and scope
of her employment with
the first defendant.
5]       In
dismissing plaintiff’s action the Magistrate took into account
that, when she
arrested and detained the plaintiff, the second
defendant had reasonable grounds for suspecting that he had
contravened Section
63(1) of the National Road Traffic Act,
[
1]
that is, that he had committed the
crime of reckless and negligent driving.   He also took
into account the penalty provisions
for such a transgression as
contained in Section 89(5) of the same Act which  provides that
:-
“
Any
person convicted of an offence of subsection (1) read with section
63(l) shall be liable :-
(a)
in
the case where the Court finds that the offence was committed by
driving recklessly, to a fine or to imprisonment for a period
not
exceeding six years;
or
(b)
in the case where the Court
finds that the offence was committed by driving negligently, to a
fine or to imprisonment for a period
not exceeding three years.”
and
then found that the said crime fell under the catalogue of crimes
enumerated in Schedule I to the Criminal Procedure Act
[
2]
and therefore that, in terms of
Section 40(1)(b) of that Act, a peace officer may, without warrant,
arrest any person whom he reasonably
suspects of having committed the
said crime.   As the second defendant purported to act in
terms of the provisions of
this section when she arrested and
detained the plaintiff, she had accordingly acted lawfully, the Court
a quo
concluded.
6]       It
is against this finding of the Court
a
quo
that the plaintiff
launched the present appeal and, as I understood Mr.
Crampton,
who appeared for the
plaintiff before us, it is common cause that, at all material times,
the arresting officer
in
casu
had reasonable grounds
to entertain a suspicion that the plaintiff had committed the crime
of reckless and negligent driving, a
crime which is referred to in
Schedule I to the Criminal Procedure Act.   However,
inspite of these admitted facts, Mr.
Crampton
submitted, the arresting
officer, in the circumstances of the present case, acted unlawfully
as she ought not to have been satisfied
with mere compliance with the
provisions of Section 40(1)(b) when making a decision to arrest the
plaintiff, but that she ought
to have taken other factors into
consideration, including, among others, that, throughout his
interaction with the arresting officer
the plaintiff had been
co-operative, even voluntarily presenting himself at the office of
the arresting officer on 23 June 2006,
that he did not present any
danger to society, that he appeared to be keen to disprove the
allegations against him and was therefore
unlikely to evade the trial
and, finally, that he did not present any harm to others.
7]       The
crisp point to be determined in this appeal is therefore whether
compliance with
the provisions of Section 40(1)(b) of the criminal
Procedure Act alone is sufficient to render an arrest lawful or
whether more
care and diligence is required from an arresting officer
before she or he takes a decision to arrest a suspect.
8]
The approach which applied in the pre-constitutional era seems to be
the one
that is satisfied with mere compliance with the provisions of
this section.  For instance, in the well-known decision of the

then Appellate Division in
Tsose
v Minister of Justice and others
[
3]
Schreiner JA
pronounced
himself as follows on the issue :-
“
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 an arrest is
not
unlawful even if it is made because the arrestor believes that arrest
will be more harassing than summons.   For
just as the best
motive will not cure an otherwise illegal arrest so the worst motive
will not render an otherwise legal arrest
illegal.”
[
4]
9]       It
would appear that, with the advent of the Constitution, the courts
began to express
doubt or uneasiness at the views expressed in
Tsose.
For
instance, in
S v van Heerden
en ander sake
[
5]
though he reserved his comments on
the Tsose pronouncement, van der Walt  J continued to remark as
follows :-
“
Die
vraag kan gevra word of die arrestasie van verkeersoortreders by die
mobiele hof slegs en uitsluitlik ten doel gehad om die
oortreders
voor die hof te bring.   Dit lyk vir my of daar ‘n
element van terrorisering daarin vervat is wat ook
die doel sou hê
om die boete insameling te vergemaklik.   Want as die boete
nie betaal word nie word die oortreder
in die gevangenisbus
aangehou……..
Onwettig
sou die arrestasie nie wees nie, maar seer sekerlik laakbaar en dit
kan alleen dien om die agting wat lede van die publiek
vir die
regsproses moet hê in gedrang te bring”.
[
6]
10]      In
Ralekwa v Minister of Safety
and Security
[
7]
de Vos J was even more
forthright.   After referring to the Tsose pronouncement,
she opined :-
“
(11)   The
question is whether, in view of the fact that we now have a
Constitution that restricts the exercise of
public power through a
justiciable Bill of Rights, the last statement of the quotation can
be correct.   There can be
no doubt that an examination
into the lawfulness of an arrest against the backdrop of a statement
that there is no rule of law
requiring the milder method of bringing
a person into court will be different from an enquiry which starts
off on the premise that
the right of an individual to personal
freedom is a right which should be jealously guarded.
(12)    I
am of the view that the demands of the Constitutional State must be
taken into account when applying
the general  test in cases such
as these …..
[
8]
11]     The
Constitution with its justiciable  Bill of Rights heralded a new
era.   The
new order was no longer subjected to the
parliamentary sovereignty.    All laws now had to be
interpreted in consonant
with the Constitution and those which were
contrary to the provisions of the Constitution and its Bill of Rights
had to be declared
invalid and therefore of no force and effect.
Section 40(1)(b) of the Criminal Procedure Act is no exception.

Its provisions must also yield to the superior imprimatur of the
Constitution.    The relevant clause of the
Constitution
provides that :-
“
12(1)
Everyone has the right to freedom and security of the person, which
includes the right :-
(a)      not
to be deprived of freedom arbitrarily or without just cause…….”
12]      Interpreting
the equivalent provision of the Interim Constitution
[
9]
O’Regan J remarked :-
“
In
my view, freedom has two inter-related constitutional aspects:
the first is a procedural aspect which requires that no-one
be
deprived of physical freedom unless fair and lawful procedures have
been followed….   The other constitutional
aspect of
freedom lies in a recognition that, in certain circumstances, even
when fair and lawful procedures have been followed,
the deprivation
of freedom will not be constitutional, because the grounds upon which
freedom has been curtailed are unacceptable”.
[
10]
13]     The
same sentiments were expressed as follows by
Ackermann
J
in
De
Lange v Smuts NO and others
:-
[
11]
“
It
can therefore be concluded that Section 12(1) in extending  the
right to freedom and security of the person, entrenches
the two
different aspects of the right to freedom referred to above.
The one that O’Regan J has, in the above-cited
passages, called
the right not to be deprived of liberty ‘for reasons that are
not acceptable’ or what may also conveniently
be described as
the substantive aspect of the protection of freedom is given express
entrenchment in Section 12(1)(a), what protects
individuals against
deprivation of freedom ‘arbitrarily or without just cause’
“
14]     The
notion of “arbitrariness” as a benchmark for wrongful
detention  finds expression
in the
International Covenant on
Civil and Political Rights,
1966 which, in its article
9(1), provides,
inter alia,
that :-
“
Everyone
has the right to liberty and security of person.   No one
shall be subjected to arbitrary arrest or detention
…..”
15]     The
words “arbitrary arrest” contained in Article 9(1) were
explained as follows by
the United Nations Human Rights Committee :-
“
Arbitrariness
is not to be equated with ‘against the law’. But must be
interpreted more broadly to include elements
of inappropriateness,
injustice, lack of predictability and due process of law……
This means that remand in
custody pursuant to lawful arrest, must not
only be lawful but reasonable in the circumstances.
Remand in custody must
further be necessary in all the circumstances,
for example, to prevent flight, interference with evidence or the
recurrence of
crime “.
[
12]
16]     The
manual refers to a decision in
A
W Mukong v Cameroon.
[
13]
In that case the applicant alleged
that he had been arbitrarily arrested and detained for several
months, an allegation rejected
by the State Party on the basis that
the arrest and detention had been carried out in accordance with
domestic law of Cameroon.
The committee concluded that
article 9(1) had been violated since the detention was neither
reasonable nor necessary in the circumstances
of the case.
For instance, the State Party had not shown that the remand in
custody was necessary to prevent flight,
interference with evidence
or the recurrence of crime.
17]     The
Fourth Amendment to the United States Constitution guarantees the
right to be free from unreasonable
searches and seizures.
In that jurisdiction an unreasonable arrest is aptly termed “a
pointless indignity arrest”
that serves no discernable State
interest.
[
14]
In evaluating the reasonableness of
police activity for purposes of the Fourth Amendment the court
should,
inter alia,:-
“…
..
evaluate the search or seizure under traditional standards of
reasonableness by assessing, on the one hand, the degree to which
it
intrudes upon an individual’s privacy and, on the other, the
degree to what it is needed for the promotion of legitimate

governmental interests.”
[
15]
18]     The
question posed by
de Vos J
in
Ralekwa (supra)
finds an
answer in the above-quoted jurisprudence of the Constitutional Court,
the United States law as well as international law.
Mere
compliance with domestic law is no longer sufficient.   To
pass Constitutional muster the arrest and detention must
also be
found to have been reasonable and necessary for the promotion of
legitimate governmental interests.  There shall therefore
be a
balancing act involving :-
“……
the
rights of the individual as against the duties of the police to
protect the community …..”
[
16]
Should
such a balancing act be performed, no doubt the reprehensible arrests
which are likely to bring our system of justice into
disrepute to
which
van der Walt J
referred in
van
Heerden
will be eliminated.
19]     There
are two conflicting South African High Court decisions on the
issue.   One is the
decision in
Louw
v Minister of Safety and Security
[
17]
wherein
Bertelsmann
J
took a view that an
arrest, being as drastic an invasion of personal liberty as it is,
must be justifiable according to the demands
of the Bill of Rights.
He then continued to hold that :-
“…
.
The police are obliged to consider, in each case when a charge has
been laid for which a suspect might be arrested, whether there
are no
less  invasive options to bring the suspect before the court
than 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”.
[
18]
20]     Not
so, according to
Goldblatt J
in
Charles
v Minister of Safety and Security,
[
19]
“
The
Legislature having granted a peace officer the right to make an
arrest in the circumstances set out in Section 40 has created
a
situation where due compliance with such section by a peace officer
is lawful and affords such peace officer protection against
an action
for unlawful arrest.   In my view, the court has no right
to impose further conditions on such persons”.
[
20]
In
van Niekerk (supra)
the
Constitutional Court was invited to resolve the conflict between
these two decisions.
Sachs
J,
however, declined the
invitation, holding that such conflict as that may exist between the
two decisions was not raised by the facts
of the case before him”.
[
21]
21]     The
Charles’
pronouncement on the issue smacks of the system
of parliamentary sovereignty of the pre-constitutional era.
We have
fortunately outlived that era and now live under a new
Constitutional dispensation wherein :-
“…
..
every exercise of power is expected to be justified;  in which
the leadership given by government rests on the cogency of
the case
offered in defence of its decisions, not the fear imposed by the
force a its command ………”
[
22]
22]     The
views expressed in
Louw
(supra)
are in sync with
the Constitution and are therefore to be preferred.
23]     The
Court
a quo
accordingly
erred when it found that mere compliance with the provisions of
Section 40(1)(b) of the Criminal Procedure Act was sufficient
to
render the arrest and detention
in
casu
a lawful one.
24]     It is
common cause that, mindful of the dilemma faced by the police
officers when exercising their discretion
under Section 40 of the
Criminal Procedure Act, the Minister of Safety and Security issued a
standard order (G) 341 which deals
with arrest and the treatment of
arrested persons.
[
23]
The standing order makes provision for
the general rule that the object of an arrest is to secure the
attendance of a person at
his or her trial and that a member may not
arrest a person in order to punish, scare, or harass such a person.
Thereafter
the order sets out exceptional circumstances during which
a person can be arrested even if the purpose for such an arrest is
not
to secure such a person’s attendance at his/her trial.
Those circumstances are an arrest for the purposes of further

investigation, an arrest to verify a name and/or address, or arrest
in order to prevent the commission of an offence,  an
arrest in
order to protect a suspect or an arrest in order to end an offence.
25]
During
cross-examination the second defendant was questioned as to whether
she had been aware of the existence of this standing
order and she
answered in the negative.
However,
in his judgment and seemingly purporting to use the provisions of the
standing order as a bench mark the learned Magistrate
concluded as
follows :-
“
In
this instance taking into account that the second defendant had
difficulty in tracing the plaintiff and she had spoken to the
senior
public prosecutor and also the manner in which she handled the
situation.   I am satisfied that she was not
male
fide
or that her actions
were unreasonable in the circumstances”.
[
24]
26]     Apart
from the fact this finding was unintelligible, as was rightly pointed
out by
Sachs J
in
van Niekerk,
this
standing order contained departmental guidelines to guide the
officers in the exercise of their discretion under Section 40.

Those guidelines can certainly not stand in the way of a
Constitutional imperative.   It would seem that in the
circumstances
of the case, such a finding cannot stand.
27]
It
is for the aforementioned additional reasons that I concur with the
order made by my brother Madondo J upholding the appeal and
referring
the matter back to the Court
a
quo
for that Court
to reconsider the issues pursuant to the reasons given in our
respective judgments.   I also agree that
the costs of the
appeal should be borne by the respondents, jointly and severally, the
one paying, the other to be absolved.
MSIMANG, J:
For
the Appellant:
Adv. D Crampton (instructed
by Acutt & Worthington c/o Botha & Olivier Inc.)
For
the Respondents:
Adv.
Hadebe (instructed by State Attorney)
Matter argued:
22
August 2008
Judgment delivered: 17 March 2009.
[
1]
No.
3 of 1996;
[
2]
51
of 1977;
[
3]
1951(3)
SA 10 (A);
[
4]
Ibid.
17 G-H;
[
5]
2002(1)
SACR 409 (T);
[
6]
Ibid.
416 f-h;
[
7]
2004(1)
SACR 131 (T);
[
8]
Ibid.
at 135 a-b;
[
9]
Section
11(1) of the Interim Constitution;
[
10]
Bernstein
and others v Bester and others NNO  1996(2) SA 751 (CC) at para
145;
[
11]
1998(3)
SA 785(CC) at para 22
[
12]
Professional Training Series No. 9 – Human
Rights in the Administration of Justice:  A manual on human
rights for Judges,
prosecutors and lawyers – 2003 – at
165;
[
13]
Ibid. at 166;
[
14]
Atnater
et el  v City of  Lago Vista et al
532 US 318
dissenting opinion of Justice O’Connor at 360;
[
15]
Ibid.
at 361;
[
16]
Per
Sachs J in Minister of Safety and Security v van Niekerk
2008(1) SACR 56 (CC) at 59c;
[
17]
2006(2)
SACB  178 (T);
[
18]
Ibid.
at 187 c-d;
[
19]
2007(2) SACR 137 (W);
[
20]
Ibid.
at 144 b;
[
21]
See
van Niekerk (supra) at para 17;
[
22]
Etienne
Mureinik “A Bridge to where?”  Introducing the
interim Bill of Rights –
Vol 10 S A Journal on Human Rights 31
at 32;;
[
23]
Standing
Order (G) 341;
[
24]
Page
4 of the judgment at page  92 of the record.