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[1986] ZASCA 24
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Duncan v Minister of Law and Order for the Republic of South Africa (38/1985) [1986] ZASCA 24; [1986] 2 All SA 241 (A) (24 March 1986)
LL
Case No 38/1935
IN THE SUPREME COURT OF SOUTH AFRICA
APPELLATE DIVISION
In the matter between:
PETER JOHN DUNCAN
Appellant
and
THE MINISTER OF LAW AND ORDER FOR
THE REPUBLIC OF SOUTH
AFRICA
Respondent
CORAM:
TRENGOVE, VILJOEN, VAN HEERDEN, BOSHOFF et JACOBS JJA
HEARD:
6 MARCH 1986
DELIVERED:
24 MARCH 1986
JUDGMENT
VAN HEERDEN JA
VAN HEER
DEN JA:
With the leave of the court a quo this appeal is directed against the
dismissal, with costs, of the appellant's claim for damages
against the
respondent. In setting out the factual background to the appeal I borrow to a
large extent from the lucid summary appear-ing
in the reported judgment of Van
Dijkhorst J in the Transvaal Provincial Division
(1984 (3) SA 460
(T)).
In the early evening of 15 May 1982 a certain Mr Ruhsmann and his son, who
were attending a fête at the Bryanston High School,
were attacked by
youths apparently under the influence of alcohol or drugs. One bumped into
Ruhsmann and another knocked him to the
ground. A third youth hit and kicked
Ruhsmann's son. The assailants who were unknown to Ruhsmann and his son then
left the scene.
As a result of the attack on Ruhsmann his larynx was fractured.. The incident
was given considerable
coverage ...
3.
coverage by the media and pressure was brought to bear on the
Randburg police to bring the villains to justice.
On 17 June 1982 Detective Warrant Officer Esterhuyse took over the
investigation of the matter. On the same day Detective Warrant
Officer
Bronkhorst received an anonymous telephone call from a young fe-male. She told
Bronkhorst that the villains had driven away
from the fête in a white
Toyota van. She also said that she had recently seen the assailant of Ruhsmann
driving that van and
that she had then made a note of the registration letters
and number, viz GHN 761 T.
Bronkhorst instructed Detective Sergeant Wiid to establish to whom the van
belonged. Wiid obtained information that the vehicle had
been sold to one Ochse.
When Wiid made enquiries from Ochse, a youngster aged 17, he was told that he
(Ochse) had in turn sold the
van to the appellant's minor son, Noel.
Ochse ...
4
Ochse was taken to the Randburg police station and in a statement taken
on 18 June 1982 he said, with reference to an alleged conversation
with Noel on
30 March 1982:
"During our conversation he mentioned in slang that him and buddies, I
presume, had a fight at a fête."
On the previous day, i e, 17 June, Wiid had seen the van in question parked
in front of the house in which Noel was living with his
parents. He had reported
this fact to Bronkhorst and at approximately 9 pm of that day the latter
proceeded to the premises. He was
accompanied by Wiid and Detective Sergeant
Lemmer He suspected Noel of having been one of the assailants and his intention
was to
question Noel for the purpose of ascertaining whether the latter had in
fact been involved in the assault on Ruhsmann. I shall revert
to the events
which ensued after the three policemen had
gained ...
5.
gained entry to the appellant's home. At this stage it
suffices to mention that Bronkhorst eventually arrested Noel and that the latter
was taken to the Rand-burg police station. He was detained for approximately 48
hours until he was released in the early evening
of 19 June.
It was that arrest and detention that caused the appellant to institute
action against the respondent in the Transvaal Provincial
Division. ' In his
capacity as Noel's guardian he claimed damages for alleged unlawful,
alternatively malicious, arrest and imprisonment.
It is not necessary to analyse
the pleadings in any detail. In the respondent's plea the arrest and detention
were admitted, as was
the allegation that the three policemen had acted within
the course and scope of their employment with the respondent. It was denied,
however, that they had acted unlawfully or maliciously. At the commencement of
the trial it
was ...
6.
was made clear that apart from the question of damages, the
only dispute was whether the arrest fell within the ambit of s 40 (1)
(b) of the
Criminal Procedure Act (51 of 1977) .
I revert to the events of the evening of 17 June 1982. There were disputes
about what was said by the
dramatis personae
, but the following findings
of the trial judge have not been questioned on appeal:
"After having identified himself and having introduced his colleagues,
Bronkhorst entered the Duncan home and went to the bedroom
where the plaintiff,
Noel's father, had indicated the conversation between Noel and the police should
take place. Bronkhorst proceeded
to question Noel about the assault on Ruhsmann
at the Bryanston High School fête on 15 May 1982. It was made clear to
Noel
that he was suspected of having been one of the assailants. Noel informed
him that he was the owner of the Toyota panel van standing
in front of the
house. He also informed him that on the day of the fete in the late afternoon he
had been at the school with the
van, and that he knew about the assault. At this
stage the plaintiff intervened and forbade him to say anything further. Noel
complied.
Bronkhorst thereupon told him that should he refuse to answer he would
have no
alternative ...
7
alternative but to arrest him. Noel persisted in his refusal and was
thereupon arrested."
Bronkhorst testified that when he arrested Noel he had already been told by
Ochse of the remark made to the latter by Noel which was
repeated in Ochse's
written statement, and which has been quoted above. It is clear that
Bronkhorst's testimony was accepted by the
court a_ quo and it was accordingly
held that at the time of the arrest Bronkhorst had
inter
alia the
following information:
a)
The anonymous telephone call
to the effect that the driver of the Toyota panel van had been one of the
assailants.
b)
The fact that the van was the
property of Noel at the time of the fête.
c)
Ochse's statement that Noel had told him that he had been involved in
a fight at a fête.
S 40 (1) (b) of the
Criminal Procedure Act 51
of ...
8
of 1977 ("the present Act") empowers a peace officer to arrest without a
warrant any person
"whom he reasonably suspects of having committed an offence referred to in
schedule 1, other than the offence of escaping from custody."
It was common cause that Bronkhorst was a peace officer and that the assault
on Ruhsmann constituted an offence referred to in schedule
1. It was also common
cause that 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
(cf
Watson v
Commissioner of Customs and Excise
1960 (3) SA 212
(N) 216;
R v Van
Heerden
1958 (3) SA 150
(T) 152); Wi
esner v Molomo
198 3 (3) SA
151 (A) 159.
The ...
9.
The first question which arose at the trial,
was whether
Bronkhorst reasonably suspected Noel of having taken part in the attack on
Ruhsmann. This question was answered in the
affirmative by the trial court which
apparently found it unnecessary to deal with the incidence of the burden of
proof. The last,
but not the final, word spoken by this Court on the
onus
in this regard, is to be found in
Botha v Lues
1983 (4) SA 496
(A). In
that case the court a
quo
had found that a party who alleges that an
arrest was unlawful bears the onus of proving the absence of reasonable grounds
for the
relevant suspicion when the other party invokes a statutory
justification for the arrest such as provided for by the subsection in
question
On appeal Corbett JA said (at p 502 A):
"In die omstandighede van die onderhawige saak en, om die redes wat volg, ag
ek dit nie nodig om uitsluitsel to gee oor hierdie geskil
aangaande die ligging
van die bewyslas met betrekking tot die regmatigheid van appellant
se ...
10.
se arrestasie nie. In die verbygaan wil ek egter daarop wys
dat dit te betwyfel is of die beslissing van die Hof a_
quo
tov die
be-wyslas met sekere onlangse beslissings van hierdie Hof versoen kan word (sien
Mabaso v Felix
1981 (3} SA 865
(A) te 872H-874B;
Ramsay v Minister van
Polisie en Andere
1981 (4) SA 802
(A) te 807E-F, 817F-818B) ."
For reasons which will appear, it is once again unnecessary to decide the
question of the burden of proof in regard to the existence
or absence of
reasonable grounds for suspicion. I shall therefore assume in favour of the
appellant that that onus rested on the
respondent. I may point out, however,
that the decision of this Court in
S v Swanepoel
1985 (1) SA 576
(A),
appears to repre-sent a formidable obstacle in the way of a contention that the
arrestee bears the burden of proof. I should
also mention at this stage that, as
will be shown here-under, the onus in question is not the only one which is
relevant for the
purposes of this appeal.
It would appear that in the court a quo counsel
for ...
11.
for the appellant did not argue that if Bronkhorst indeed had the information
set out in (a) to (c) above at his disposal when arresting
Noel, he yet would
not have had reasonable grounds for suspecting Noel of complicity in the attack
on Ruhsmann. Nor was such an argument
advanced before this Court. And if regard
is also had to Noel's admissions that he had attended the fete and had knowledge
of the
assault, and the appellant's instruction that Noel should refrain from
answering any further questions, the postulated contention
would indeed have
been untenable.
The judgment of the trial court deals mainly with a submission based upon the
judgment in
Tsose v Minister of Just
ice and Others
1951 (3) SA 10
(A). In
this Court, however, counsel for the appellant made a direct frontal assault on
the trial court's finding in regard to (c)
above. In order to appreciate the
nature of the argument it is necessary to refer to certain features of the
evidence in more detail
than did
the . . .
12. the trial court.
Wiid denied that he arrested Ochse. He said that Ochse willingly accompanied
him to the police station when requested to do so for
the purpose of verifying
Ochse's alibi. During cross-examination Wiid was asked whether Ochse had told
him of the remark made by
Noel about the fight at the fête. He answered in
the affirmative but was rather vague. He said that Ochse referred to that
remark
" [w]hen I put him in the office with ... Bronkhorst." Almost immediately
afterwards he said: "It was in ... Bronkhorst's
office, and I think it was on
the way to the police station." Later he appeared to testify that the
information in question was furnished
in the police car on the way to the police
station; that he told Bronkhorst what Ochse had said, and that the latter then
repeated
Noel's remark to Bronkhorst.
Ochse, who was called by the respondent, was
extremely ...
13.
extremely vague about -what was said when Wiid first spoke to
him and also about subsequent conversations.
He could not remember that Noel
had in fact made the remark which appears in his written statement but said that
that statement was
true. He referred to an interrogation by Esterhuyse and at
the very end of his cross-examination the following question was put to
him:
"And it was with Esterhuyse and Wiid that you had spoken before [i e, before
he had made his written statement],nobody else?"
The answer was:
"It was only - yes, and it was only with Esterhuyse that I did the
statement."
Bronkhorst denied that Wiid had told him of Noel's remark. He said that that
information was conveyed to him by Ochse after the latter
had been brought to
the police station but before Noel was arrested.
In the light of the above contradictions counsel
for ...
14
for the appellant submitted that it cannot be accepted that
Bronkhorst was informed of the remark in question prior to Noel's arrest.
I do
not agree. Although the trial court did not specifically comment on the
demeanour of the witnesses, it is clear that it accepted
Bronkhorst's version of
his conversation with Ochse-And a reading of the testimony of Bronkhorst, on the
one hand, and of that of
Ochse and Wiid, on the other hand, leaves little room
for doubt that Bronkhorst was a much better witness than either Ochse or Wiid.
Moreover, there is not necessarily a conflict between the version of Bronkhorst
and that of Ochse. When the former, who was not the
investigating officer, was
asked whether he had interrogated Ochse, he answered:
"Ek en Ochse se geselskap was eintlik meer op 'n vriendskaplike basis. Ek kan
miskien aan u noem ek het sy vertroue probeer wen op
daardie stadium. Hy het
saam met my koffie gedrink en ons het gesit en gesels en toe het ons oor die
voertuig en oor alles gesels
en mnr. Esterhuyse het hom later, die
ondersoekbeampte... .
15. ondersoekbeampte, by my kantoor kom neem."
It was during this conversation, so Bronkhorst testified, that he learned of
Noel's remark.
Ochse was not specifically asked whether he had had a conversation with
Bronkhorst. Hence, when he gave the reply which has been quoted
above, he may
well have thought that the question related only to police officers who had
interrogated him, as distinguished from
an officer with whom he may have had an
amicable discussion over a cup of coffee.
But, said counsel for the appellant, there are undisputed facts which point
strongly towards the probability that Bronkhorst was not
told of the alleged
remark by Noel. The strongest pointer, so it was contended, is that Noel was not
one of the criminals who had
assaulted Ruhsmann. Hence there is no reason why
Noel should have falsely told Ochse that he and some "buddies" had a fight at a
fête. Ochse, therefore, probably made
it ...
16.
it up and it is unlikely that he would have done so be-fore
Esterhuyse brought pressure to bear on him.
In my view there is an obvious flaw in this line of reasoning for the simple
reason that according to Ochse's written statement Noel
did not give any
par-ticulars about the "fight". Nor did Noel refer to the Bryanston fete as
distinguished from any other fête.
The fact, if it is one, that Noel was
not one of Ruhsmann's assailants, consequently does not militate against the
possibility that
Noel might have been involved in some form of scrap at another
fete. But apart from this consideration, I do not find it improbable
that when
subsequent to Wiid's initial questioning Bronkhorst sought to gain Ochse's
confidence, he may have fictionalised in order
to allay suspicions against
him.
Counsel for the appellant also submitted that Wiid's version that he did
not arrest Ochse and that the latter pointed out the appellant's
home to him,
should
be ...
17.
be disbelieved. All that need be said is that the question
whether Wiid is to be believed on those points, has no relevance to the
issues
in this appeal.
In sum: There is no reason for disturbing the trial court's findings in
regard to the information at the disposal of Bronkhorst at
the time of Noel's
arrest.
I turn then to the main contention advanced by counsel for the appellant in
this Court as well as in the court a_
quo
. Before dealing with the point
of law involved, it is necessary to refer briefly to the factual basis for the
contention. Although
Bronkhorst considered that there were ample grounds for
suspecting Noel of complicity in the attack on Ruhsmann, he conceded by
implication
that further evidence had to be obtained for a successful
prosecution on a charge of assault with intent to do grievous bodily harm.
He
also conceded that the object of the arrest was to establish if Noel had in fact
been involved in the
assault .. .
18.
assault. He said that had he been the investigating officer,
he would have arranged an identification parade. It can be accepted,
however,
that he also contemplated that Noel would be questioned whilst in custody.
In the light of Bronkhorst's concessions
counsel for the appellant
submitted that the arrest was unlawful. It is beyond dispute, so it was claimed
on the strength of
Tsose
's case
supra
, that the object of an
arrest of a suspect is to ensure his attendance in court in answer to a charge.
And since Noel was not arrested
with that object in mind, so the submission
concluded, the arrest was tainted with illegality.
In
MacDonald v Kumalo
1927 EDL 293
, 301, Graham JP iterated that,
"the object of the arrest of an accused person is to ensure his attendance in
Court in answer to a charge, and not to punish him for
an offence of which he
has not been convicted."
Having referred to this
dictum
in Tsose's case,
Schreiner . . .
19.
Schreiner JA went on to say (at p 17):
"There is however, no reason to doubt the correctness of the proposition
stated by GRAHAM, J.P., if it is properly understood. If
the object of the
arrest, though professedly to bring the arrested person before the court, is
really not such, but is to frighten
or harass him and so induce him to act in a
way desired by the arrestor, without his appearing in court, the arrest is, no
doubt,
unlawful. But if the object of the arrestor is to bring the arrested
person before the court in order that he may be prosecuted to
conviction and so
may be led to cease to contravene the law the arrest is not rendered illegal
because the arrestor's motive is to
frighten or harass the arrested person into
desisting from his illegal conduct. An arrest is not unlawful because the
arrestor intends
and states that he intends to go on arresting the arrested
person till he stops contravening the law if the intention always is after
arrest to bring the arrested person duly to prosecution."
Counsel did not refer to a further decision of this Court in which Muller JA
expressed approval of certain observations of the trial
court relating to an
argument based on
Tsose
's case. In
Minister van die Suid-Afrikaanse
Polisie en 'n Ander v Kraatz en 'n Ander
/1973 ...
20
1973 (3) SA 490
(A) 508, Muller JA said:
"Ek is dit heeltemal eens met Regter HOEXTER dat die bevoegdheid om 'n
lasbrief aan te vra, kragtens art. 28 (1) van die Strafprosesordonnansie,
verleen is alleen vir 'n bepaalde doel, nl . om die persoon teen wie die
lasbrief uitgereik word, na arrestasie, op 'n aanklag van
'n misdryf voor 'n
regterlike beampte te laat bring—(art. 33
van
genoemde
Ordonnansie). Ek stem ook met die geleerde Regter saam dat, waar 'n persoon 'n
lasbrief aanvra met die voorwendsel dat dit
vir die gemagtigde doel verkry word,
terwyl hy in werklikheid nie bedoel om dit. vir daardie doel aan te wend nie,
maar wel vir 'n
ander, ongeoorloofde, doel hy
ma1a fide
en dus in fraude
legis optree."
With reference to the above contention of counsel for the appellant as
expounded in the court a
quo
, Van Dijkhorst J said that there is strong
support for that contention in the judgment of this Court in
Tsose
' s
case. Yet he found against the appellant. His reasons for doing so may be
summarised as follows:
When Tsose's case was decided sections 26 and 27 of the Criminal Procedure
and Evidence Act (31 of 1917)
as ...
21 .
as amended regulated arrest without a warrant by peace
officers.Under s 33 of that Act it was trite law that where a person was
arrested
on suspicion of having committed an offence, he had to be brought
before a court without delay; otherwise he had to be released.
In s 50 of the
present Act the words "as soon as possible" have, however, been omitted. In
terms of that section the police may now
lawfully detain an arrested person for
at least 48 hours before bringing him before a court or releasing him. The
injunction that
he shall be brought before a judicial officer as soon as
possible has been omitted and so has the further injunction that he shall
be
charged with an offence. These omissions are significant and cannot be ascribed
to a mere oversight on the part of the legislature.
Hence an arrest made under s
40 (1) (b) of the present Act is not unlawful where the arrestor entertains the
required reasonable
suspicion but intends to make further
enquiries ...
22.
enquiries after the arrest before finally deciding whether to
proceed with a prosecution, provided, it is the intention throughout
to comply
with s 50 of the Act. That was indeed Bronkhorst's intention and it is
irrelevant that the overriding purpose of the arrest
was to afford the police an
opportunity to question Noel or to put him on an identification parade.
The contention of counsel for the appellant under consideration, as
formulated in his heads of argument in this Court, was in the
main concerned
with the inferences drawn by the court a
quo
from the differences between
the wording of: s 50 of the present Act and that of s 33 of Act 31 of 1917 as it
read when
Tsose
's case was decided. (I shall refer to the latter Act as
the old Act and to s 33 as it read subsequent to the amendment of the original
section by s 5 (a) of Act 46 of 1935.) It was submitted that the court a
quo
erred in finding that the legislature intended to
change ...
23.
change the law as expounded in
Tsose
's case. For
reasons which wil1 appear, I find it unnecessary to consider in any detail the
reason for or the effect of the legislative
rephrasing of s 33 of the old Act.
In my view the appeal would have failed even if it were to be decided under that
section as it
read in 1951.
It appears to me that the contention in question
is based on a misconception as to the true import of the reasoning of Schreiner
JA
in
Tsose
' s case. It may, however, be conducive to clarify if, before
setting out my reasons for this view, the basis on which an apparently
lawful
arrest may yet be held to be unlawful, is considered.
The so-called
jurisdictional facts which must exist before the power conferred by s 4 0 (1)
(b) of the present Act may be invoked,
are as follows:
1)The arrestor must be a peace officer.
2)He must entertain a suspicion.
/3).....
24.
3) It must be a suspicion that the arrestee
committed an offence referred to in. Schedule 1 to the Act (other than one
particular offence) .
4) That suspicion must rest on reasonable
grounds.
If the jurisdictional requirements are satisfied, the peace officer may
invoke the power conferred by the subsection, i e, he may
arrest the suspect. In
other words, he then has a discretion as to whether or not to exercise that
power (cf
Hoigate-Mohammed v Puke
(1984) 1 All E R 1054
(HL) 1057). No
doubt the discretion must be properly exercised. But the grounds on which the
exercise of such a discretion can be
questioned are narrowly circumscribed.
Whether every improper application of a discretion conferred by the subsection
will render
an arrest unlawful, need not be considered because it does not
arise
in ...
25
in this case. All that need be said for the pur-
poses of the point under consideration is 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. But in such a case, as is generally
the rule where the exercise of a discretion is ques-
tioned, the onus to establish the improper object
of the arrestor will rest on the arrestee (cf
Divisional Commissioner of S A Police, Witwa
ters-
rand Area, and Others v S A Associated Newspapers
Ltd and Another
1966 (2) SA 502
(A) 512; Groene-
wald v Minister van Justisie
1973 (3) SA 877
(A) 884)
It ...
26 .
It is, I apprehend, on the above approach that Schreiner JA,
in
Tsose
's case said that if the object of an arrest, though professedly
to bring the arrestee before a court, is not really such, the arrest
is
unlawful. But in that case Schreiner JA was focussing attention on the
distinction between the object of bringing the arrestee
before the court and an
object "to frighten or harass him and so induce him to act in a way desired by
the arrestor." The learned
judge did not attempt to analyse the concept of an
object relating to an appearance of the arrestee in court, and certainly said
nothing to indicate that he was of the opinion that if it is the arrestor's
object to bring the arrestee to justice
provided further evidence can be
obtained
the underlined qualification renders the arrest unlawful even if
the arrestor has no other, ulterior motive. Nor do the dicta of
Graham JP in
MacDonald
's case,
supra
, and of Muller JA in
Kraatz
's case,
supra
lend ...
27.
lend support to a contention that a purpose as qualified
above is objectionable.
In terms of s 33 (1) of the old Act, a person arrested without a warrant
could be detained until a warrant for his further detention
upon a criminal
charge was obtained or until he was released "by reason that no charge [was] to
be brought against him", provided
that unless so released the arrested person
had
as soon as possible
to be brought before a judicial officer upon such
a charge. The underlined words clearly did not rule out any further
investigation
before the arrestee was either released or brought before a
judicial officer. For instance, if a person had been arrested in the
late
afternoon he could be questioned or even be put on an identification parade
before it would be possible to cause him to appear
in court. And when brought
before a judicial officer, the case against the arrestee could have been
remanded in order to enable the
police to
complete ...
28 .
complete their investigation.
In the light of" these considerations there is no warrant for holding that
the legislature did not contemplate further investigation
subsequent to the
arrest of a suspect. Indeed, it must have contemplated that such investigation
could lead either to the arrestee's
release from detention or his prosecution on
a criminal charge. I say so not only because of the wording of s 33 (1) but also
because
s 2 6 provided, as does s 40 of the present Act, for arrest without a
warrant on reasonable grounds for the required suspicion. Now,
as was said by
Lord Devlin in
Shaaban Bin Hussien and Others v Chong Fook K
am and
Another
(1969) 3 All E R 1627
, 1630 (PC):
"Suspicion in its ordinary meaning is a state of conjecture or surmise where
proof is lacking; 'I suspect but I cannot prove. Suspicion
arises at or near the
starting point of an investigation of which the obtaining of prima facie proof
is the end."
S 26 ...
29.
S 26 of the old Act therefore authorised arrest without "a
warrant in circumstances where the peace officer, although entertaining
a
reasonable suspicion, knew that proof in order to make out a
prima facie
case was lacking. Hence, if s 26 and s 33 of the old Act are read together, it
must clearly have been intended that further investigation,
inter alia
,
by means of questioning of the suspect, could follow on an arrest. Were it
otherwise, s 31 (1) would no doubt have provided that
the power to arrest
without a warrant could only be exercised if there were reasonable grounds for
believing in the existence of
a
prima facie
case against the
arrestee.
S 50 (1) of the present Act leaves even more scope for further investigation
prior to an appearance in court. For an arrestee may
now be detained for at
least 48 hours before being brought before a court. I therefore share the view
of Van Dijkhorst J that an
arrest ...
30 .
arrest without warrant is not unlawful merely because
the
arrestor intends to make further investigation be
fore deciding whether to
release the arrestee or to
proceed with a prosecution as contemplated by s 50
(1 ) .
If the object of the arrestor is to do just that, it
cannot be said
that he acted with an extraneous or
ulterior purpose such as Schreiner JA had
in mind in •
Tsose
's case. But that was also the law
under the old Act.
Put negatively, an arrest is unlawful if the arrestor has no intention of
bringing the arrestee before a court. And in the case of
a private or so called
citizen's arrest in terms of s 42 of the new Act the test is whether or not it
was the arrestor's primary
object to hand the arrestee over to the police for
further steps in terms of s 50. That, I conceive, is what was intended to be
conveyed
by
dicta
such as that the object of the private arrestor must be
"om hom [i e the arrestee] voor die gereg te bring "
Wiesner ..
31 .
Wiesner v Molomo
supra, at p 158 E, and
Macu v Du
Toit en 'n Ander
1983 (4) SA 629
(A) 645 G.
Counsel for the appellant was constrained
to concede
that as a matter of logic his contention, if sound, must lead to the following
results:
(1)
A policeman exercises his
discretion to arrest a suspect, who is on the point of fleeing the country, with
the object of carrying
out further investigation before bringing the suspect to
justice. The result: the arrest is unlawful.
(2)
The object of the arrestor is to bring the suspect before a court,
but to obtain, through
the prosecutor, a remand so
that further investigation may take place. The result: the arrest is lawful
merely because in the contemplation
of the arrestor the investigation will not
precede an appearance in court.
In my view the above concessions clearly
underline ...
32.
underline the untenability of the contention under
consideration.
Counsel for the appellant also conceded that in English law it is lawful to
arrest for the purpose of questioning the arrestee, and
that this is so even if
the arrestor appreciates that a conviction cannot be obtained in the absence of
further evidence such as
a confession:
Holgate-Mohammed v Duke
(1984) 1
All E R 1054
(HL). In that case it was held that an arrest was not unlawful
merely because it was in the contemplation of the police officer that
there was
a greater likelihood of the suspect responding truthfully to questions
concerning a crime if questioned under arrest at
a police station than if,
without an arrest, questions were to be put to him at his own home.
Counsel submitted, however, that the difference between the legal position in
South Africa, as contended
for ...
33.
for by him, and English law revolves around the duty of an
English police officer to form a conclusion as to the existence or otherwise
of
prima facie
proof of the arrestee's guilt. It is clear, however, from the
decision in
Duke
's case that that duty does not relate to the time of the
arrest, but to the period of detention prior to bringing the arrestee to
justice
or releasing him, as the case may be. It is only when a policeman in England has
subsequent to the arrest, but whilst the
arrestee is still lawfully detained,
reached the conclusion that
prima facie
proof of the arrested person's
guilt is unlikely to be discovered by further investigation that it is his duty
to release him from
custody: Duke's case, at p 1058 b But a South African
policeman is under a similar duty. Although not spelled out in so many words
in
s 50 of the new Act, it is clearly implied that an arrestee must be released if
no charge is to be brought against him, and if
the conclusion is reached that a
p
rima
facie ..
34.
facie
case cannot be established, he will obviously
not be"charged in court. Hence, for the purposes of the contention under
consideration,
the applicable statutory provisions in England do not differ
materially from those of s 26 read with s 33 of the old Act, and s 40
(1) (b)
read with s 50 of the present Act.
But counsel for the appellant had a second string to his bow. It was tied to
the following
dictum
in the judgment of the Court of Appeal in
Mohammed-Holgate v Duke
(1983) 3 All E R 526
(CA) 533:
"... if the purpose of the constable had been to subject the suspect to
improper questioning or improper pressure during the contemplated
period which
would follow the arrest which would be occupied by the questioning ... that
would be an impure motive which could not
be relied on, but that is tantamount,
in my judgment, to saying that the officer was not acting bona fide ..."
The first leg of the submission was that
Bronkhorst was not entitled to
arrest Noel for the purpose of questioning him since rule 4 of the Judge's
Rules ...
35.
Rules restricts the authority of the police to interrogate a
suspect subsequent to his arrest (see Hiemstra, Suid-Afrikaanse Strafprosesreg,
third ed, p 472). The short answer to this argument is that those rules do not
have the force of law, and are at most domestic regulations
for the guidance of
the police force: R
v Kuzwayo
1949 (3) SA 761
(A) 767. Thus, a statement
made by an accused to a police officer in the course of an interrogation after
the former's arrest, is
not inadmissible merely because of a' transgression of
rule 4:
R v Holtzhaus
en
1947 (1) SA 567
(A) 569. And since such an
interrogation is not unlawful, an arrest is not illegal merely because one of
the objects of the arrestor
is to interrogate the arrestee in a manner contary
to the injunctions of the said Rules.
The second leg of the submission is that any questioning of Noel subsequent
to his arrest would have been improper because he had
intimated an election
to ...
36.
to remain silent. In this regard counsel relied on the
following passage appearing in the judgment of Williamson J in
S v Mpe
tha
and
Others
(2)
1983 (1) SA 576
(C) 598:
"Once the person being interviewed is cautioned and then indicates that he does
not want to say anything it is in my opinion improper
to direct further
questions to him. If he answers these further questions
the irresistible
inference
is that his earlier expressed decision to say nothing has been
made to crumble by the pressures of the situation in which he then
finds
himself. All the more is this the case where a youngster in detention is
confronted by policemen who appear to pay no heed
at all to his clearly
expressed choice." (My underlining.)
It seems to me
that when using the underlined words Williamson J pitched his assessment of the
probative effect of intransigent questioning
too high. No doubt such an
inference
may
be drawn from all the circumstances, one being the
interrogation of the person concerned in conflict with his election to remain
silent, but I do not think that the inference is irresistible
merely ....
37.
merely because of the interviewer's persistent attitude . Be
that as it may, and assuming, without deciding, that the above quoted
dictum
in
Duke
's case (CA) also reflects our law, I do not think
that Bronk-horst intended that Noel should be questioned in an improper manner.
The reason why Noel did not answer further questions immediately prior to his
arrest, was that the appellant had instructed him not
to do so. The
probabilities are that Bronkhorst believed that Noel would voluntarily respond
to questioning when removed from the
dominating presence of his father. And I
fail to see how the questioning envisagated by Bronkhorst can be regarded as
improper. I
should make it clear, however, that I refrain from expressing an
opinion on the question whether an arrest would be unlawful if the
only further
investigation contemplated by the arrestor is the questioning of a suspect who
has made it clear that under no circumstances
will he respond to
any ...
38
any questions.
The appeal is dismissed with costs, including the costs of the appellant's
application for condonation of the late lodging of the
notice of appeal which
was granted during the hearing of the appeal.
H.J.O. VAN HEERDEN
JA
TRENGOVE
JA
VILJOEN
JA
BOSHOFF
JA
JACOBS
JA
CONCUR
LL Case No 38/1985
IN THE SUPREME COURT OF SOUTH AFRICA
APPELLATE DIVISION
In the matter between:
PETER JOHN DUNCAN
Appellant
and
THE MINISTER OF LAW AND ORDER FOR
THE REPUBLIC OF
SOUTH AFRICA
Respondent
CORAM
: TRENGOVE, VILJOEN, VAN HEERDEN,
BOSHOFF et JACOBS JJA
HEARD: 6 MARCH 1986
DELIVERED: 24 MARCH 1986
JUDGMENT
VAN HEERDEN JA
2.
VAN HEERDEN JA
:
With the leave of the court a
quo
this appeal is directed against the
dismissal, with costs, of the appellant's claim for damages against the
respondent. In setting
out the factual background to the appeal I borrow to a
large extent from the lucid summary appearing in the reported judgment of
Van
Dijkhorst J in the Transvaal Provincial Division
(1984 (3) SA 460
(T)).
In the early evening of 15 Hay 1982 a certain Mr Ruhsmann and his son, who
were attending a fête at the Bryanston High School,
were attacked by
youths apparently under the influence of alcohol or drugs. One bumped into
Ruhsmann and another knocked him to the
ground. A third youth hit and kicked
Ruhsmann's son. The assailants who were unknown to Ruhsmann and his son then
left the scene.
As a result of the attack on Ruhsmann his larynx was fractured. The incident
was given considerable
coverage ...
3
coverage by the media and pressure was brought to bear on the Randburg police
to bring the villains to justice.
On 17 June 1982 Detective Warrant Officer Esterhuyse took over the
investigation of the matter. On the same day Detective Warrant
Officer
Bronkhorst received an anonymous telephone call from a young female. She told
Bronkhorst that the villains had driven away
from the fête in a white
Toyota van. She also said that she had recently seen the assailant of Ruhsmann
driving that van and
that she had then made a note of the registration letters
and number, viz GHN 761 T.
Bronkhorst instructed Detective Sergeant Wiid to establish to whom the van
belonged. Wiid obtained information that the vehicle had
been sold to one Ochse.
When Wiid made enquiries from Ochse, a youngster aged 17, he was told that he
(Ochse) had in turn sold the
van to the appellant's minor son, Noel.
Ochse ...
4
Ochse was taken to the Randburg police station and in a statement taken on 13
June 1982 he said, with reference to an alleged conversation
with Noel on 30
March 1982:
"During our conversation he mentioned in slang that him and buddies, I
presume, had a fight at a fête."
On the previous day, i e, 17 June, Wiid had seen the van in question parked
in front of the house in which Noel was laving with his
parents. He had reported
this fact to Bronkhorst and at approximately 9 pm of that day the latter
proceeded to the premises. He was
accompanied by Wiid and Detective Sergeant
Lemmer He suspected Noel of having been one of the assailants and his intention
was to
question Noel for the purpose of ascertaining whether the latter had in
fact been involved in the assault on Ruhsmann. I shall revert
to the events
which ensued after the three policemen had
gained ...
5
gained entry to the appellant's home. At this stage it suffices
to mention that Bronkhorst eventually arrested Noel and that the latter
was
taken to the Rand-burg police station. He was detained for approximately 48
hours until he was released in the early evening
of 19 June.
It was that arrest and detention that caused the appellant to institute
action against the respondent in the Transvaal Provincial
Division. In his
capacity as Noel's guardian he claimed damages for alleged unlawful,
alternatively malicious, arrest and imprisonment.
It is not necessary to analyse
the pleadings in any detail. In the respondent's plea the arrest and detention
were admitted, as was
the allegation that the three policemen had acted within
the course and scope of their employment with the respondent It was denied,
however, that they had acted unlawfully or maliciously. At the commencement of
the trial it
was ...
6.
was made clear that apart from the question of damages, the
only dispute was whether the arrest fell within the ambit of s 40 (1)
(b) of the
Criminal Procedure Act (51 of 1977) .
I revert to the events of the evening of 17 June 1982. There were disputes
about what was said by the
dramatis personae
, but the following findings
of the trial judge have not been questioned on appeal:
"After having identified himself and having introduced his colleagues,
Bronkhorst entered the Duncan home and went to the bedroom
where the plaintiff,
Noel's father, had indicated the conversation between Noel and the police should
take place. Bronkhorst proceeded
to question Noel about the assault on Ruhsmann
at the Bryanston High School fête on 15 May 1982. It was made clear to
Noel
that he was suspected of having been one of the assailants. Noel informed
him that he was the owner of the Toyota panel van standing
in front of the
house. He also informed him that on the day of the fete in the late afternoon he
had been at the school with the
van, and that he knew about the assault. At this
stage the plaintiff intervened and forbade him to say anything further. Noel
complied.
Bronkhorst thereupon told him that should he refuse to answer he would
have no
alternative ...
7 .
alternative but to arrest him. Noel persisted in his refusal and was
thereupon arrested."
Bronkhorst testified that when he arrested Noel he had already been told by
Ochse of the remark made to the latter by Noel which was
repeated in Ochse's
written statement, and which has been quoted above. It is clear that
Bronkhorst's testimony was accepted by the
court a_
quo
and it was
accordingly held that' at the time of the arrest Bronkhorst had
inter
alia
the following information:
a) The anonymous telephone call to the effect that the driver of the Toyota
panel van had been one of the assailants.
b)
The fact that the van was
the property of Noel at the time of the fête.
c)
Ochse's statement that Noel had told him that he had been involved in
a fight at a fête.
S 40 (1) (b) of the
Criminal Procedure Act 51
of ...
8
of 1977 ("the present Act") empowers a peace officer to arrest without a
warrant any person
"whom he reasonably suspects of having" committed an offence referred to in
schedule 1, other than the offence of escaping from custody."
It was common cause that Bronkhorst was a peace officer and that the assault
on Ruhsmann constituted an offence referred to in schedule
1. It was also common
cause that 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
(cf
Watson v
Commissioner of Customs and Excise
1960 (3) 5A 212 (N) 216;
R v Van
Heerden
1958 (3) SA 150
(T) 152);
Wiesner
v Molomo 198 3 (3) SA
151 (A) 159.The ...
9.
The first question which arose at the trial, was whether Bronkhorst
reasonably suspected Noel of having taken part in the attack on
Ruhsmann. This
question was answered in the affirmative by the trial court which apparently
found it unnecessary to deal with the
incidence of the burden of proof. The
last, but not the final, word spoken by this Court on the
onus
in this
regard, is to be found in
Botha v Lues
1983 (4) SA 496
(A). In that case
the court a.
quo
had found that a party who alleges that an arrest was
unlawful bears the onus of proving the absence of reasonable grounds for the
relevant suspicion when the other party invokes a statutory justification for
the arrest such as provided for by the subsection in
question On appeal Corbett
JA said (at p 502 A):
"In die omstandighede van die onderhawige saak en, om die redes wat volg, ag
ek dit nie nodig om uitsluitsel to gee oor hierdie geskil
aangaande die ligging
van die bewyslas met betrekking tot die regmatigheid van appellant
se . . .
10.
se arrestasie nie. In die verbygaan wil ek egter daarop wys dat dit te
betwyfel is of die beslissing van die Hof
a_
quo tov die be-wyslas met
sekere onlangse beslissings van hierdie Hof versoen kan word (sien
Mabaso v
Felix
1981 (3) SA 865
(A) te 872H-874B;
Ramsay v Minister van Polisie en
Andere
1981 (4) SA 802
(A) te 807E-F, 817F-818B)."
For reasons which wil1 appear, it is once again unnecessary to decide the
question of the burden of proof in regard to the existence
or absence of
reasonable grounds for suspicion. I shall therefore assume in favour of the
appellant that that onus rested on the
respondent. i may point out, however,
that the decision of this Court in
S v Swanepoel
1985 (1) SA 576
(A),
appears to represent a formidable obstacle in the way of a contention that the
arrestee bears the burden of proof. I should
also mention at this stage that, as
will be shown here-under, the onus in question is not the only one which. is
relevant for the
purposes of this appeal.
It would appear that in the court a quo counsel
for ...
11.
for the appellant did not argue that if Bronkhorst indeed had the information
set out in (a) to (c) above at his disposal when arresting
Noel, he yet would
not have had reasonable grounds for suspecting Noel of complicity in the attack
on Ruhsmann. Nor was such an argument
advanced before this Court. And if regard
is also had to Noel's admissions that he had attended the fête and had
knowledge
of the assault, and the appellant's instruction that Noel should
refrain from answering any further questions, the postulated contention
would
indeed have been untenable.
The judgment of the trial court deals mainly with a submission based upon the
judgment in
Tsose v Minister of Justice and Others
1951 (3) SA 10
(A). In
this Court, however, counsel for the appellant made a direct frontal assault on
the trial court's finding in regard to (c)
above. In order to appreciate the
nature of the argument it is necessary to refer to certain features of the
evidence in more detail
than did
the ...
12. the trial court.
Wiid denied that he arrested Ochse. He said that Ochse willingly accompanied
him to the police station when requested to do so for
the purpose of verifying
Ochse's alibi. During cross-examination Wiid was asked whether Ochse had told
him of the remark made by
Noel about the fight at the fête. He answered in
the affirmative but was rather vague. He said that Ochse referred to that
remark
"[w]hen I put him in the office with ... Bronkhorst." Almost immediately
afterwards he said: "It was in ... Bronkhorst's office,
and I think it was on
the way to the police station." Later he appeared to testify that the
information in question was furnished
in the police car on the way to the police
station; that he told Bronkhorst what Ochse had said, and that the latter then
repeated
Noel's remark to Bronkhorst.
Ochse, who was called by the respondent, was
extremely ...
13.
extremely vague about what was. said when Wiid first spoke to him and also
about subsequent conversations. He could not remember that
Noel had in fact made
the remark which appears in his written statement but said that that statement
was true. He referred to an
interrogation by Esterhuyse and at the very end of
his cross-examination the following question was put to him:
"And it was with Esterhuyse and Wiid that you had spoken before [i e, before
he had made his written statement], nobody else?"
The answer was:
"It was only - yes, and it was only with Esterhuyse that I did the
statement."
Bronkhorst denied that Wiid had told him of Noel's remark. He said that that
information was conveyed to him by Ochse after the latter
had been brought to
the police station but before Noel was arrested.
In the light of the above contradictions counsel
for ...
14.
for the appellant submitted that it cannot be accepted that
Bronkhorst was informed of the remark in question prior to Noel's arrest.
I do
not agree. Although the trial court did not specifically comment on the
demeanour of the witnesses, it is clear that it accepted
Bronkhorst's version of
his conversation with Ochse. And a reading of the testimony of Bronkhorst, on
the one hand, and of that of
Ochse and Wiid, on the other hand, leaves little
room for doubt that Bronkhorst was a much better witness than either Ochse or
Wiid.
Moreover, there is not necessarily a conflict between the version of
Bronkhorst and that of Ochse. When the former, who was not the
investigating
officer, was asked whether he had interrogated Ochse, he answered:
"Ek en Ochse se geselskap was eintlik meer op 'n vriendskaplike basis. Ek kan
miskien aan u noem ek het sy vertroue probeer wen op
daardie stadium. Hy het
saam met my koffie gedrink en ons het gesit en gesels en toe het ons oor die
voertuig en oor alles gesels
en mnr. Estarhuyse het horn later, die
ondersoekbeampte .
15. ondersoekbeampte, by my kantoor kom neem."
It was during this conversation, so Bronkhorst testified, that he learned of
Noel's remark.
Ochse was not specifically asked whether he had had a conversation with
Bronkhorst. Hence, when he gave the reply which has been quoted
above, he may
well have thought that the question related only to police officers who had
interrogated him, as distinguished from
an officer with whom he may have had an
amicable discussion over a cup of coffee.
But, said counsel for the appellant, there are undisputed facts which point
strongly towards the probability that Bronkhorst was not
told of the alleged
remark by Noel. The strongest pointer, so it was contended, is that Noel was not
one of the criminals who had
assaulted Ruhsmann. Hence there is no reason why
Noel should have falsely told Ochse that he and some "buddies" had a fight at a
fête. Ochse, therefore, probably made
it ...
16.
it up and it is unlikely that he would have done so before Esterhuyse brought
pressure to bear on him.
In my view there is an obvious flaw in this line of reasoning for the simple
reason that according to Ochse's written statement Noel
did not give any
particulars about the "fight". Nor did Noel refer to the Bryanston fête as
distinguished from any other fête.
The fact, if it is one, that Noel was
not one of Ruhsmann's assailants, consequently does not militate against the
possibility that
Noel might have been involved in some form of scrap at another
fête. But apart,from this consideration, I do not find it improbable
that
when subsequent to Wiid's initial questioning Bronkhorst sought to gain Ochse's
confidence, he may have fictionalised in order
to allay suspicions against
him.
Counsel for the appellant also submitted that Wiid's version that he did
not arrest Ochse and that the latter pointed but the appellant's
home to him,
should
be ...
17.
be disbelieved. All that need be said is that the question whether Wiid is to
be believed on those points, has no relevance to the
issues in this appeal.
In sum: There is no reason for disturbing the trial court's findings in
regard to the information at the disposal of Bronkhorst at
the time of Noel's
arrest.
I turn then to the main contention advanced by counsel for the appellant in
this Court as well as in the court
a
quo. Before dealing with the point
of law involved, it is necessary to refer briefly to the factual basis for the
contention. Although
Bronkhorst considered that there were ample grounds for
suspecting Noel of complicity in the attack
on
Ruhsmann, he conceded by
implication that further evidence had to be obtained for a successful
prosecution on a charge of assault
with intent to do grievous bodily harm. He
also conceded that the object of the arrest was to establish if Noel had in fact
been
involved in the
assault ...
18
assault. He said that had he been the investigating officer, he would have
arranged an identification parade. It can be accepted,
however, that he also
contemplated that Noel would be questioned whilst in custody.
In the light of Bronkhorst's concessions
counsel for the appellant
submitted that the arrest was unlawful. It is beyond dispute, so it was claimed
on the strength of
Tsose
's case, supra, that the object of an arrest of a
suspect is to ensure his attendance in court in answer to a charge. And since
Noel
was not arrested with that object in mind, so the submission concluded, the
arrest was tainted with illegality.
In
MacDonald v Kumalo
1927 EDL 293
, 301, Graham JP iterated that
"the object of the arrest of an accused person is to ensure his attendance in
Court in answer to a charge, and not to punish him for
an offence of which he
has not been convicted."
Having referred to this
dictum
in
Tsose
's case,
Schreiner ...
19.
Schreiner JA went on to say (at p 17):
"There is, however, no reason to doubt the correctness of the proposition
stated by GRAHAM, J.P., if it is properly understood. If
the object of the
arrest, though professedly to bring the arrested person before the court, is
really not such, but is to frighten
or harass him and so induce him to act in a
way desired by the arrestor, without his appearing in court, the arrest is, no
doubt,
unlawful. But if the object of the arrestor is to bring the arrested
person before the court in order that he may be prosecuted to
conviction and so
may be led to cease to contravene the law the arrest is not rendered illegal
because the arrestor's motive is to
frighten or harass the arrested person into
desisting from his i1legal conduct. An arrest is not unlawful because the
arrestor intends
and states that he intends to go on arresting the arrested
person till he stops contravening the law if the intention always is after
arrest to bring the arrested person duly to prosecution."
Counsel did not refer to a further decision of this Court in which Muller JA
expressed approval of certain observations of the trial
court relating to an
argument based on
Tsose
's case. In
Minister van die Suid-Afrikaanse
Polisie en. 'n Ander v Kraatz en 'n Ander
/1973 ...
20.
1973 (3) SA 490
(A) 508, Muller JA said:
"Ek is dit heeltemal eens met Regter HOEXTER dat die bevoegdheid om 'n
lasbrief aan te vra, kragtens art. 28 (1) van die Strafprosesordonnansie,
verleen is alleen vir 'n bepaalde doel, nl.om die persoon teen wie die lasbrief
uitgereik word, na arrestasie, op 'n aanklag van
'n misdryf voor 'n regterlike
beampte te laat bring—(art. 33 van genoemde Ordonnansie). Ek stem ook met
die geleerde Regter
saam dat, waar 'n persoon 'n lasbrief aanvra met die
voorwendsel dat dit vir die gemagtigde doel verkry word, terwyl hy in
werklikheid
nie bedoel om dit vir daardie doel aan te wend nie, maar wel vir 'n
ander, ongeoorloofde, doel hy mala
fide
en dus in
fraudem legis
optree."
With reference to the above contention of counsel for the appellant as
expounded in the court a
_
quo
, Van Dijkhorst J said that there is
strong support for that contention in the judgment of this Court in
Tsose
's case. Yet he found against the appellant. His reasons for doing
so may be summarised as follows:
When
Tsose
's case was decided sections 26 and 27 of the Criminal
Procedure and Evidence Act (31 of 1917)
as ...
21.
as amended regulated arrest without a warrant by peace officers. Under s 33
of that Act it was trite law that where a person was arrested
on suspicion of
having committed an offence, he had to be brought before a court without delay;
otherwise he had to be released."
In s 50 of the present Act the words "as soon
as possible" have, however, been omitted. In terms of that section the police
may now
lawfully detain an arrested person for at least 48 hours before bringing
him before a court or releasing him. The injunction that
he shal1 be brought
before a judicial officer as soon as possible has been omitted and so has the
further injunction that he shall
be charged with an offence. These omissions are
significant and cannot be ascribed to a mere oversight on the part of the
legislature.
Hence an arrest made under s 40 (1) (b) of the present Act is not
unlawful where the arrestor entertains the required reasonable
suspicion but
intends to make further
enquiries . ...
22.
enquiries after the arrest before finally deciding whether to proceed with a
prosecution, provided it is the intention throughout
to comply with s 50 of the
Act. That was indeed Bronkhorst's intention and it is irrelevant that the
overriding purpose of the arrest
was to afford the police an opportunity to
question Noel or to put him on an identification parade.
The contention of counsel for the appellant under consideration, as
formulated in his heads of argument in this Court, was in the
main concerned
with the inferences drawn by the court a_
quo
from the differences
between the wording of s 50 of the present Act and that of s 33 of Act 31 of
1917 as it read when
Tsose
's case was decided. (I shall refer to the
latter Act as the old Act and to s 33 as it read subsequent to the amendment of
the original
section by s 5 (a) of Act 46 of 1935.) It was submitted that the
court a
quo
erred in finding that the legislature intended to
change . .
'.
23.
change the law as expounded in Tsose's case. For reasons which will appear, I
find it unnecessary to consider in any detail the reason
for or the effect of
the legislative rephrasing of s 33 of the old Act. In my view the appeal would
have failed even if it were to
be decided under that section as it read in
1951.
It appears to me that the contention in question is based on a
misconception as to the true import of the reasoning of Schreiner JA
in Tsose's
case. It may, however, be conducive to clarify if, before setting out my reasons
for this view, the basis on which an
apparently lawful arrest may yet-be held to
be unlawful, is considered.
The so-called jurisdictional facts which must
exist before the power conferred by s 40 (1) (b) of the present Act may be
invoked,
are as follows:
1)
The arrestor must be a peace
officer.
2)
He must entertain a
suspicion.
/3)......
24.
3) . It must be a suspicion that the arrestee
committed an offence referred to in Schedule 1 to the Act (other than one
particular offence).
4) That suspicion must rest on reasonable
grounds.
If the jurisdictional requirements are satisfied, the peace officer may
invoke the power conferred by the subsection, i e, he may
arrest the suspect. In
other words, he then has a discretion as to whether or not to exercise that
power {cf
Hoigate-Mohammed v Duke
(1984) 1 All E R1054 (HL) 1057). No
doubt the discretion must be properly exercised. But the grounds on which the
exercise of such
a discretion can be questioned are narrowly circumscribed.
Whether every improper application of a discretion conferred by the subsection
will render an arrest unlawful, need not be considered because it does not
arise
in ...
25.
in this case. All that need be said for the pur-
poses of the point under consideration is 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. But in such a case, as is generally
the rule where the exercise of a discretion is ques-
tioned, the onus to establish the improper object
of the arrestor will rest on the arrestee (cf
Divisional Commissioner of S A Police, Witwaters-
rand Area, and Others v S A Associated Newspapers
Ltd and Another
1966 (2) SA 502
(A) 512; Groene-
wald v Minister van Justisie
1973" (3) SA 877
(A) 884)
It...
26 .
It is, I apprehend, on the above approach that Schreiner JA, in
Tsose
's case said that if the object of an arrest, though professedly to
bring the arrestee before a court, is not really such, the arrest
is unlawful .
But in that case Schreiner JA was focussing attention on the distinction between
the object of bringing the arrestee
before the court and an object "to frighten
or harass him and so induce him to act in a way desired by the arrestor." The
learned
judge did not attempt to analyse the concept of an object relating to an
appearance of the arrestee in court, and certainly said
nothing to indicate that
he was of the opinion that if it is the arrestor's object to bring the arrestee
to justice
provided further evidence can be obtained
the underlined
qualification renders the arrest unlawful even if the arrestor has no other,
ulterior motive. Nor do the
dicta
of Graham JP in
MacDonald
's
case,
supra
, and of Muller JA in Kraatz's case,
supra
lend ...
27
lend support to a contention that a purpose as qualified above is
objectionable.
In terms of s 33 (1) of the old Act, a person arrested without a warrant
could be detained until a warrant for his further detention
upon a criminal
charge was obtained or until he was released "by reason that no charge [was] to
be brought against him", provided
that unless so released the arrested person
had
as soon as possible
to be brought before a judicial officer upon such
a charge. The underlined words clearly did not rule out any further
investigation
before the arrestee was either released or brought before a
judicial officer. For instance, if a person had been arrested in the
late
afternoon he could be questioned or even be put on an identification parade
before it would be possible to cause him to appear
in court. And when brought
before a judicial officer, the case against the arrestee could have been
remanded in order to enable the
police to
complete ...
28 . complete their investigation.
In the light of these considerations there is no warrant for holding that the
legislature did not contemplate further investigation
subsequent to the arrest
of a suspect. Indeed, it must have contemplated that such investigation could
lead either to the arrestee's
release from detention or his prosecution on a
criminal charge. I say so not only because of the wording of s 33 (1) but also
because
s 26 provided, as does s 40 of the present Act, for arrest without a
warrant on reasonable grounds for the required suspicion. Now
as was said by
Lord Devlin in
Shaaban Bin Hussien and Others v Chong Fook Kam and
Another
(1969) 3 All E R 1627
, 1630 (PC):
"Suspicion in its ordinary meaning is a state of conjecture or surmise where
proof is lacking; 'I suspect but I cannot prove'. Suspicion
arises at or near
the starting point of an investigation of which the obtaining of prima facie
proof is the end."
S 26 ....
29 .
S 26 of the old Act therefore authorised arrest without a warrant in
circumstances where the peace officer, although entertaining
a reasonable
suspicion, knew that proof in order to make out a
prima facie
case was
lacking. Hence, if s 26 and s 33 of the old Act are read together, it must
clearly have been intended that further investigation,
inter alia
, by
means of questioning of the suspect, could follow on an arrest. Were it
otherwise, s 31 (1) would no doubt have provided that
the power to arrest
without a warrant could only be exercised if there were reasonable grounds for
believing in the existence of
a
prima facie
case against the
arrestee.
S 50 (1) of the present Act leaves even more scope for further investigation
prior to an appearance in court. For an arrestee may
now be detained for at
least 48 hours before being brought before a court. I therefore share the view
of Van Dijkhorst J that an
arrest ...
30 .
arrest without warrant is not unlawful merely because
the arrestor intends
to make further investigation be
fore deciding whether to release the
arrestee or to
proceed with a prosecution as contemplated by s 50 (1).
If
the object of the arrestor is to do just that, it
cannot be said that he
acted with an extraneous or
ulterior purpose such as Schreiner JA had in mind
in
Tsose
's case. But that was also the law
under the old Act.
Put negatively, an arrest is unlawful if the arrestor has no intention of
bringing the arrestee before a court. And in the case of
a private or so called
citizen's arrest in terms of s 42 of the new Act the test is whether or not it
was the arrestor's primary
object to hand the arrestee over to the police for
further steps in terms of s 50. That, I conceive, is what was intended to be
conveyed
by
dicta
such as that the object of the private arrestor must be
"om hom [i e the arrestee] voor die gereg te bring "
Wiesner ...
31 .
Wiesner v Molomo supra,
at p 158 E, and
Macu v' Du
Toit en 'n Ander
1983 (4) SA 629
(A) 645 G.
Counsel for the appellant was constrained to concede that as a matter of
logic his contention, if sound, must lead to the following
results:
(1)
A policeman exercises his
discretion to arrest a suspect, who is on the point of fleeing the country, with
the object of carrying
out further investigation before bringing the suspect to
justice. The result: the arrest is unlawful.
(2)
The object of the arrestor is to bring the suspect before a court,
but to obtain, through
the prosecutor, a remand so
that further investigation may take place. The result: the arrest is lawful
merely because in the contemplation
of the arrestor the investigation will not
precede an appearance in court.
In my view the above concessions clearly
underline ...
32.
underline the untenability of the contention under
consideration.
Counsel for the appellant also conceded that in English law it is lawful to
arrest for the purpose of questioning the arrestee, and
that this is so even if
the arrestor appreciates that a conviction cannot be obtained in the absence of
further evidence such as
a confession:
Holgate-Mohammed v Duke
(1984) 1
All E R 1054
(HL). In that case it was held that an arrest was not unlawful
merely because it was in the contemplation of the police officer that
there was
a greater likelihood of the suspect responding truthfully to questions
concerning a crime if questioned under arrest at
a police station than if,
without an arrest, questions were to be put to him at his own home.
Counsel submitted, however, that the difference between the legal position in
South Africa, as contended
for ...
33.
for by him, and English law revolves around the duty of an
English police officer to form a conclusion as to the existence or otherwise
of
prima facie
proof of the arrestee's guilt. It is clear, however, from the
decision in
Duke
's case that that duty does not relate to the time of the
arrest, but to the period of detention prior to bringing the arrestee to
justice
or releasing him, as the case may be. It is only when a policeman in England has
subsequent to the arrest, but whilst the
arrestee is still lawfully detained,
reached the conclusion that
prima facie
proof of the arrested person's
guilt is unlikely to be discovered by further investigation that it is his duty
to release him from
custody:
Duke
's case, at p 1058 b But a South African
policeman is under a similar duty. Although not spelled out in so many words in
s 50 of the
new Act, it is clearly implied that an arrestee must be released if
no charge is to be brought against him, and if the conclusion
is reached that a
prima
facie ...
34.
facie
case cannot be established, he will obviously not be charged in
court- Hence, for the purposed of the contention under consideration,
the
applicable statutory provisions in England do not differ materially from those
of s 26 read with s 33 of the old Act, and s 40
(1) (b) read with s 50 of the.
present Act.
But counsel for the appellant had a second string to his bow. It was tied to
the following
dictum
in the judgment of the Court of Appeal in
Mohammed-Holgate v Duke
(1983) 3 All E R 526
(CA) 533:
"... if the purpose of the constable had been to subject the suspect to
improper questioning or improper pressure during the contemplated
period which
would follow the arrest which would be occupied by the questioning, ... that
would be an impure motive which could not
be relied on, but that is tantamount ,
in my judgment, to saying that the officer was not acting bona fide ..."
The first leg of the submission was that
Bronkhorst was not entitled to
arrest Noel for the purpose of questioning him since rule 4 of the Judge's
Rules ...
35.
Rules restricts the authority of the police to interrogate" a
suspect subsequent to his arrest (see Hiemstra, Suid-Afrikaanse Strafprosesreg,
third ed, p 472). The short answer to this argument is that those rules do not
have the force of law, and are at most domestic regulations
for the guidance of
the police force: R
v Kuzwayo
1949 (3) SA 761
(A) 767. Thus, a statement
made by an accused to a police officer in the course of an interrogation after
the former's arrest, is
not inadmissible merely because of a transgression of
rule 4:
R v Holtzhausen
1947 (1) SA 567
(A) 569. And since such an
interrogation is not unlawful, an arrest is not illegal merely because one of
the objects of the arrestor
is to interrogate the arrestee in a manner contary
to the injunctions of the said Rules.
.The second leg of the submission is that 'any questioning of Noel subsequent
to his arrest would have been improper because he had
intimated an election
to ...
36.
to remain silent. In this regard counsel relied on the
following passage appearing in the judgment of Williamson J in
S v Mpetha and
Others
(2)
1983 (1) SA 576
(C) 598:
"Once the person being interviewed is cautioned and then indicates that he does
not want to say anything it is in my opinion improper
to direct further
questions to him. If he answers these further questions
the irresistible
inference
is that his earlier expressed decision to say nothing has been
made to crumble by the pressures of the situation in which he then
finds
himself. All the more is this the case where a youngster in detention is
confronted by policemen who appear to pay no heed
at ,all to his clearly
expressed choice." (My underlining.)
It seems to me
that when using the underlined words Williamson J pitched his assessment of the
probative effect of intransigent questioning
too high. No doubt such an
inference
may
be drawn from all the circumstances, one being
the"interrogation of the person concerned in conflict with his election to
remain
silent, but I do not think that the inference is irresistible
merely ...
37.
merely because of the interviewer's persistent attitude. Be
that as it may, and assuming, without deciding, that the above quoted
dictum in
Duke
's case (CA) also reflects our law, I do not think that Bronk-horst
intended that Noel should be questioned in an improper manner.
The reason why
Noel did sot answer further- questions immediately prior to his arrest, was that
the appellant had instructed him
not to do so. The probabilities are that
Bronkhorst believed that Noel would voluntarily respond to questioning when
re-
moved from the dominating presence of his father.And I fail to see how
the questioning envisaged by Bronkhorst can be regarded as
improper. I should
make it clear, however, that I refrain from expressing an opinion on the
question whether an arrest would be unlawful
if the only further investigation
contemplated by the arrestor is the questioning of a suspect who has made it
clear that under no
circumstances will he respond to
any ...
38
any questions.
The appeal is dismissed with costs, including the costs of the appellant's
application for condonation of the late lodging of the
notice of appeal which
was granted during the hearing of the appeal.
H.J.O. VAN HEERDEN JA
TRENGOVE JA VILJOEN JA BOSHOFF JA JACOBS
JA
CONCUR