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2024
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[2024] ZALMPPHC 41
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Isaac v Minister of Police and Another (HCAA23/2022) [2024] ZALMPPHC 41 (26 April 2024)
REPUBLIC
OF
SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: HCAA23/2022
REPORTABLE
OF INTEREST TO OTHER
JUDGES
REVISED
DATE: 26/04/2024
In
the matter between:
THOKA
ISAAC
APPELLANT
And
THE
MINISTER OF
POLICE 1st
RESPONDENT
LIMPOPO
PROVINCIAL COMMISSIONER OF POLICE 2nd
RESPONDENT
JUDGMENT
LEDWABAAJ
[1] Between
21hrs of the 21st December 2017 and 2h20 am of the 22nd December
2017, the appellant was arrested
and detained without a warrant by
Lieutenant Colonel Mohlala (Mohlala), the member of the South Africa
Police Service, acting within
the course and scope of his employment
with the first respondent. The first respondent avers that Mohlala
had reasonable suspicion
that the appellant had committed an offence
of contravening the domestic violence protection order as envisaged
in
section 8(4)
of the
Domestic Violence Act 116 of 1998
and that
this is an offence covered in schedule 1 of the Criminal Procedure
Act 51 of 1977 ( the CPA) . It is common cause that
the appellant was
detained without court appearance for about five days until the 27
th
December 2017 when
the public prosecutor decided not to proceed with any charge against
him.
[2] The
existence of the protection order prohibiting the appellant from
assaulting, threatening to assault,
insulting or swearing the
complaint, his former wife is common cause.
[3] The
first respondent's version is that when he saw two men walked out of
the place where his former wife
stayed carrying his fridge, the
appellant threatened his ex-wife that if she did not return the
fridge, she would know him. This
is denied by the appellant. His
version is that when that happened, he ordered the men to return the
fridge back to his former
wife's homestead.
[4] The
appellant contends that the arrest and detention are unlawful. The
first respondent's version is
that the arrest was justified in terms
of section 40(1)(b) of the CPA read with Chapter 4(2) (a) of the
South African Police Services
Standing Order G 341, in that the
appellant was arrested on reasonable suspicion of having committed
schedule 1 offence of violating
the protection order.
[1]
The Domestic Violence Court issued the protection order and the
arrest warrant. The first respondent does not rely on this warrant.
[5] The
court of first instance found that there was little doubt that the
police officers acted on a reasonable
suspicion that the appellant
committed a schedule 1 offence in that he violated the protection
order and further that the appellant
was about to commit further
offences under schedule 1. It found that the jurisdictional
requirements were satisfied, that the police
officers properly
exercised their discretion and that the arrest was lawful. Referring
to Mvu case
[2]
, it concluded
that the appellant's detention was lawful.
[6] The
court of first instance dismissed with costs the appellant's claim.
This aggrieved the appellant
who lodged an appeal. On the 16th
September 2022 the court of first instance granted the appellant
leave to appeal to the full
bench of this division.
[7] Section
35(1)(f) of the Constitution presupposes a deprivation of freedom- by
arrest that is constitutional.
This deprivation is for limited
purpose of ensuring that the arrestee is duly and fairly tried.
[3]
[8] The
prism through which liability for unlawful arrest and detention
should be considered is the section
12(1) constitutional right not to
be arbitrarily deprive of freedom and security. The unlawful
deprivation of liberty, with its
accompanying infringement of the
right to human dignity has always been regarded as a grave wrong and
a serious inroad into the
freedom and rights of a person. The
unlawful arrest and detention constitutes a serious inroad into the
freedom and the rights
of an individual. The principles of delictual
liability following unlawful arrest is that in order to succeed a
plaintiff must
show that the defendant either personally or
vicariously deprive her or him of her liberty. Since the arrest and
detention involve
the deprivation of liberty, it is fair and just
that the person who caused the arrest should bear the onus of proving
that the
action is justified. Once the arrest and imprisonment are
out of dispute, the defendant must allege and prove the existence of
grounds of justification.
[4]
[9] Since
arrest and detention without warrant is common cause in this matter,
the first respondent bears
the onus of justifying the arrest and
detention. The first respondent relies on the provision of section
40(1)(b) of the CPA read
with Chapter 4(2) (a) of the South African
Police Services Standing Order G 341, to aver that the appellant was
arrested on reasonable
suspicion of having committed schedule 1
offence of violating the protection order
[10] The
reading of scheduled I of the CPA reveals that the contravention of
the section of the
Domestic Violence Act is
not covered under the
schedule, whether expressly or by implications. This defeats the
first respondent's justification.
On more than the balance of
probabilities, the first respondent has failed to justify the
appellant's arrest and detention.
[11] The
court of first instance misdirected itself when it found that the
police officers acted on a reasonable
suspicion that the appellant
committed a schedule 1 offence. It further misdirected itself when it
found that the jurisdictional
requirements were satisfied, th.at the
police officers properly exercised their discretion and that the
arrest was lawful. This
calls for intervention.
There
is a misdirection in law which justifies interference with the order
of the court of first instance.
[5]
The appeal succeeds. There is no reason why the costs should not
follow the judgment.
Order
12.1 The
appeal succeeds with costs, including the costs in the court of first
instance.
12.2 The
court
order
of
the
court
a
quo
is
set
aside
and
substituted
with
the
following:
12.2.1. The
plaintiff succeeds in his claim for the 1
st
defendant with
costs.
LGP
LEDWABA AJ
ACTING
JUDGE OF THE HIGH COURT
LIMPOPO
DIVISION : POLOKWANE
I
agree
F
KGANYAGO J
JUDGE
OF THE HIGH COURT
LIMPOPO
DIVISION : POLOKWANE
I
agree
DIAMOND
AJ
ACTING
JUDGE OF THE HIGH COURT
LIMPOPO
DIVISION: POLOKWAINE
[1]
Par
3.3 and 4 of the amended plea- page 34- par 3 of bundle 1 of 4.
[2]
Mvu v
Minister of Safety and Security 2009(6) SA 82( GSJ)
[3]
S v
Dlamini, S v Dladla & Others; S v Joubert; S v Schietekat
(1999)
ZASCA 8
; 1999(4) 623(CC); 1999(1) BCLR 771( CC) - par 53
[4]
Mahlangu&
Another v Minister of Police (2021) ZACC10; 2012(7) BCLR 698(CC);
2021(2) SACR 595(CC)- paras 25,27 30,31 and 32
[5]
Liesching
& Others v S
(2018) ZACC 25
; 2018(11) BCLR I349(CC); 2019(1)SACR
178 (CC); 2019(4) SA 219(CC)Par 104