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2024
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[2024] ZAECMKHC 45
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Gawie v Minister of Police (CA208/2022) [2024] ZAECMKHC 45 (21 January 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION,
MAKHANDA
Case no: CA208/2022
In the matter between:
GERSWIN
GAWIE
Appellant
and
MINISTER
OF
POLICE
Respondent
JUDGMENT
Zilwa AJ
[1]
This
is an appeal against the judgment of the regional court in Gqeberha
dismissing the Appellant’s action brought against
the
Respondent claiming damages arising from an alleged unlawful arrest
and detention.
[2]
The
trial court dismissed the claim. It upheld the defence that the
arrest was lawful in terms of section 40(1)(a) or, alternatively,
section 40(1)(b) or, further alternatively, section 40(1)(h) of the
Criminal Procedure Act
[1]
(‘
CPA
’),
which permits an arrest without a warrant. The court held, on
the facts that the Appellant had been lawfully arrested
on a
reasonable suspicion of being in illegal possession of ammunition in
contravention of section 90 of the Firearms Control Act
[2]
.
[3]
At
the commencement of the proceedings the Appellant brought an
application for condonation for non-compliance with the provisions
of
Rules 50(4)(a) and (7)(a) of the Uniform rules and for re-instatement
of the appeal. Since there was no opposition to the application,
it
was granted.
[4]
The
Appellant’s case was that on 30 September 2010 he had been with
his friends at one Gershwin Goliath’s house where
they had a
meal. The house had a servant’s quarters which he and his two
friends, together with their girlfriends, occupied
for the remainder
of the night. During the early hours of the morning they had heard a
knock on the door. Initially, no one responded
to his enquiry as to
who was at the door. Later, he heard male voices and the door was
kicked open with the police identifying
themselves as such. The
police, he said, had removed the females from the room and ordered
the males to stand next to the wall.
On searching the room the police
had discovered a box of live ammunition. The police slapped
them with open hands and then
lifted and carried them for
approximately 30 to 40 metres before throwing them into the police
van. They were transported to Bethalsdorp
Police Station and placed
in different rooms. They were asked about the ammunition to which
they responded that they did not know
anything about it. Then they
had been taken to the cells and detained.
[5]
There
were a number of factual disputes at the trial, but the facts which
may be accepted as undisputed are the following: the Appellant
and
his friends were in occupation of the servant’s quarters in
which live ammunition was discovered; the Appellant was among
the
people arrested by the police late on the evening
of 30 September 2010; and that he was detained at
Bethalsdorp
Police Station and released on 4 October 2010.
[6]
It
is common cause that the police officers were acting in the course
and scope of their employment and the sole issue to be determined
on
the merits is whether the arrest and detention was lawful. It is well
established that the onus rests on the Minister to establish
the
lawfulness of an arrest. This is so because an arrest
constitutes such a serious interference with the liberty of the
individual concerned that it is fair and just to require that the
person who carried out the arrest, or caused the arrest, should
bear
the onus of proving that his action is justified in law.
[3]
[7]
In
casu
, the Minister relies on sub-sections 40(1)(a) or 40(1)(b)
or 40(1)(h) of the CPA in justifying the arrest. The sub-section that
is directly applicable to the facts of this case is 40(1)(h) and I
shall confine the judgment to this subsection. It
provides (in relevant part) as follows:
"(1)
A
peace officer
[4]
may without
warrant arrest any person –
(h)
who
is reasonably suspected of committing or having committed an offence
under any law governing … . the possession or disposal
of arms
or ammunition."
[8]
To
succeed in this section 40(1)(h) defence, therefore, the
jurisdictional facts to be established by the Minister are that, at
the time the arrest was effected: (i) the arrestor was a peace
officer; (ii) the arrestor entertained a suspicion; (iii) the
suspicion
was that the suspect was committing or had committed an
offence under a law governing the possession or disposal of arms and
ammunition;
and (iv) the suspicion rested on reasonable grounds.
[5]
[9]
In
Sekhoto
the SCA provided guidance on how the evidence in
an unlawful arrest case should be assessed in order to determine
whether
the arrest was unlawful. The following is a two-stage
process:
9.1
First,
the Minister is obliged to establish the jurisdictional facts which
must be present before a police officer may effect an
arrest without
a warrant in terms of s 40(1) of the CPA.
9.2
Once
those four jurisdictional facts are present, a peace officer
may
,
without a warrant, arrest a person. In other words, once these
jurisdictional facts are established, the police officer has the
statutory power to exercise his discretion on whether the person
should be arrested and detained or not.
9.3
The
second factual enquiry, which arises only when it is alleged
[6]
by the arrestee, is whether the discretion was lawfully exercised,
taking into account all relevant facts applicable to the exercise
of
the discretion, in the context of the particular case. In this
instance the Appellant has not placed any reliance on the
improper
exercise of the discretion in his pleadings and Mr van Rooyen, on
behalf of the Appellant, acknowledged, correctly, that
the issues do
not arise.
[10]
The
Minister's case, supported by the evidence of the arresting officer,
Warrant Officer Joubert, was that the Appellant had been
arrested
after the ammunition was discovered in the room that he was in charge
of. The police had attended a scene of armed robbery
where people had
been shot. WO Joubert’s evidence was that they had received
information about the suspects’ whereabouts
and they had been
directed to the servant’s quarters where the Appellant and his
co-occupants were found. Initially
they had knocked on the door
and identified themselves as police, but, although they could hear
people inside, no one opened the
door. WO Joubert then called
for a backup and, when further policemen arrived, the door had been
forced open. On searching
the room they had discovered a box with
ammunition. They enquired from the occupants about the ammunition
found, but no one provided
any response, even when they were informed
that they were being arrested for illegal possession thereof.
[11]
The
first three required jurisdictional fact for s 40(1)(h) were not in
dispute. The only issue in dispute in this case was
whether WO
Joubert’s suspicion that the Appellant was in possession of the
ammunition was founded on reasonable grounds.
Self-evidently WO
Joubert and his colleagues could not have known for sure at the time
to whom the ammunition belonged and he arrested
all the occupants. In
my view, a reasonable suspicion as contemplated in
Duncan
was
established. If the evidence of WO Joubert is accepted,
this evidence satisfies the test for the reasonable suspicion
justifying an arrest without a warrant and the Minister will have
established compliance with the requirements in s 40(1)(h).
[12]
The
first question that one needs to ask is why the police went directly
to the servant’s quarters, and not to the main house,
if they
were not directed by the informers? Secondly, why did the Appellant
ignore the police when they were knocking at the door
until the door
was kicked open, if there was nothing to hide? Thirdly, why did they
keep quiet and not explain and, if needs be,
distance themselves from
the ammunition found from the room they had been in occupation of?
[13]
On
the other hand the Appellant’s evidence was full of
improbabilities, for instance, why would the police lift and carry
them for approximately 30 to 40 metres over the fence before throwing
them into the police van?
[14]
In
my view the magistrate was correct in preferring the evidence of WO
Joubert and rejecting the evidence of the Appellant because
the
former’s evidence was clear, concise and to the point. He did
not contradict himself in any material way. His evidence
was more
probable than the Appellant's version. As WO Joubert testified, the
reason that he suspected the Appellant and his co-occupants
was
because he had been directed to the room where they were found and on
his arrival this was all verified by the discovery of
the illegal
ammunition. He thus harboured a reasonable suspicion that the
occupants had committed the offence.
[15]
The
Appellant’s version failed to account for the ammunition found.
According to him he could not be held liable for the ammunition
found
in the room because, to the knowledge of WO Joubert, the room did not
belong to him and he was only there for a night.
This does not
advance the debate. The evidence must be viewed holistically
and then one is required to make a value judgment
as to whether a
reasonable man would have harboured a suspicion that the Appellant
had committed the offence contended for.
When doing so, I do
not think that the conclusion reached by the magistrate was wrong.
[16]
In
the circumstances, I find that the Respondent established each of the
jurisdictional facts to bring himself within s 40(1)(h)
and to show
that
prima facie
, the arrest was authorised by the CPA
and therefore lawful. The appeal must therefore fail.
Costs
[17] The
trite legal principle is that the costs should follow the outcome and
I do not find any reason to
depart from that. The Respondent’s
success in this matter should entitle him to his costs.
Orde
[18] Accordingly
the appeal is dismissed with costs.
H ZILWA
JUDGE OF THE HIGH
COURT (ACTING)
EKSTEEN J:
I agree.
JW EKSTEEN
JUDGE OF THE HIGH
COURT
Appearances:
For Appellant:
Adv C Van Rooyen
Instructed by:
Swarts Attorneys, Gqeberha c/o NN Dullabh & Co., Makhanda
For Respondent:
Adv Hesselman
Instructed by:
State Attorneys, Gqeberha
Date Heard:
17 November 2023
Date Delivered:
21 January 2024
[1]
51
of 1977
[2]
60
of 2000
[3]
Minister
of Law and Order and Others v Hurley and Another
1986
(3) SA 568
(A) at 589 E-F; confirmed in
Minister
of Safety and Security v Sekhoto and Another
2011
(5) SA 367
(SCA) at para [7]
[4]
All
policemen are peace officers by virtue of their appointment.
[5]
Duncan
v Minister of Law and Order
1986
(2) SA 805
(A) at 818 G-H
[6]
Minister
of Law and Order and Another v Dempsey
1998
(3) SA 19
(A) at 37B-39F;
Sekhoto
para
[48] - [49].