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[2019] ZASCA 25
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Janse van Rensburg v Minister of Police (424/2018) [2019] ZASCA 25 (28 March 2019)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Not
Reportable
Case No:
424/2018
In the matter between
CASPARUS JANSE VAN
RENSBURG
APPELLANT
and
THE MINISTER OF POLICE
RESPONDENT
Neutral
citation:
Van Rensburg v Minister of
Police
(424/18)
[2019] ZASCA 25
(28 March
2018)
Coram:
Ponnan and Leach JJA and Rogers AJA
Heard
:
14 March 2019
Delivered:
28 March 2019
Summary:
Arrest – lawfulness of – whether
arresting officer reasonably suspected appellant of culpable homicide
– failure
by arresting officer to consider question of
negligence – respondent failed to establish reasonable
suspicion.
Appeal
– duty by trial court to assess whether, in terms of s 17(6)(
a
)
of Superior Courts Act, appeal warranted attention of Supreme Court
of Appeal – matter manifestly did not warrant attention
of
Supreme Court Of Appeal.
Costs
– amount recovered falling within jurisdiction of regional
division of magistrate’s court – successful appellant
limited in court a quo to costs on magistrate’s court scale.
ORDER
On
appeal from:
The Gauteng Division of the High
Court, Pretoria (Teffo J sitting as court of first instance).
(1) The appeal succeeds with costs.
(2) The order of the court a quo is set aside and replaced with the
following order:
‘
(a)
The defendant is ordered to pay the plaintiff R150 000 plus interest
thereon at the prescribed rate from 9 September 2013 to
date of
payment.
(b)
The defendant is ordered to pay the plaintiff’s costs of suit
on the magistrate’s court scale.’
JUDGMENT
Rogers
AJA (Ponnan and Leach JJA concurring)
[1] The appellant,
Mr Casparus van Rensburg, sued the respondent, the Minister of
Police, in the Gauteng Division of the High Court,
Pretoria, for
damages for wrongful arrest and detention. The parties agreed that if
the arrest was unlawful the appellant was entitled
to damages of R150
000. The court a quo (per Teffo J) held that the arrest was lawful
and dismissed the appellant’s action.
The appellant appeals to
this court with the leave of the court a quo.
[2] The
circumstances of the appellant’s arrest are as follows. On the
morning of Friday 28 June 2013 the appellant was driving
a Ford
Ranger bakkie towing a trailer when his trailer struck and killed an
18-year-old cyclist. According to the appellant, he
saw the cyclist
and moved over to the right of the road to give him a wide berth. The
cyclist suddenly veered to the right. The
appellant swerved further
to the right. Although he managed to avoid hitting the cyclist with
his bakkie, the trailer collided
with him.
[3] The appellant
did a U-turn, parked his vehicle and summoned the police and
ambulance service. The police arrived about half
an hour later. The
appellant introduced himself to the first responder, Constable
Shibambu, and explained briefly what had happened.
Shibambu asked to
see his driver’s licence. The appellant produced it. Shibambu
pointed out to him that the licence had expired
in February 2013.
Upon examining the Ford’s licence disc, Shibambu noticed that
it had expired in May 2013.
[4] Shibambu and
other police officials then joined the paramedics who were busy with
the deceased. The appellant’s evidence
was that after a short
time Shibambu returned to him and said that unfortunately the cyclist
was dead and that he was arresting
the appellant. At the trial
Shibambu gave various reasons as to why he executed a warrantless
arrest. These included: that the
appellant’s vehicle was
unroadworthy and that his driver’s license had expired; that he
suspected the appellant of
culpable homicide; that he could not get a
warrant because it was past 10h00 on a Friday morning; that the
appellant’s addresses
needed to be verified; that the appellant
needed to be taken to court; and that he was thinking of the
appellant’s safety,
because the bystanders came from the same
community as the deceased cyclist. It appears that Shibambu
considered the Ford to be
unroadworthy on the sole ground that its
disc had expired.
[5] The appellant
was detained at the police cells until his first appearance in court
on the morning of Monday 1 July 2013 when
he was released on bail.
His detention lasted about 70 hours. The appellant appeared in court
again on 5 August 2013. The prosecutor
provisionally withdrew the
charges against him. His action for damages was instituted in
February 2014.
[6] During September
2014 a criminal summons was issued in which the appellant was charged
with three offences: (a) driving without
a valid driver’s
licence in contravention of s 12 of the National Road Traffic Act 93
of 1996 (NRTA); (b) driving an unroadworthy
vehicle in contravention
of s 42(1) of the NRTA; and (c) culpable homicide. The matter was set
down for trial on 5 August 2015.
On that day the prosecutor withdrew
the second and third charges on the basis that the appellant signed
an admission of guilt in
respect of the first charge, which the
appellant duly did, paying a fine of R300.
[7] The respondent
pleaded that the arrest was lawful (a) in terms of s 40(1)(
a
)
of the Criminal Procedure Act 51 of 1977 (CPA), because the appellant
committed the two NRTA offences in Shibambu’s presence;
(b) in
terms of s 40(1)(
b
) of the CPA, because Shibambu reasonably
suspected the appellant to have committed an offence listed in
schedule 1 to the CPA,
namely culpable homicide.
[8] In order to
discharge the onus of justifying the arrest on these grounds (as to
which see
Zealand v Minister for Justice and Constitutional
Development & another
[2008]
ZACC 3
;
2008 (4) SA
458
(CC) para 25;
Minister of Safety and Security v Sekhoto
& another
[2010] ZASCA 141
;
2011 (5) SA 367
(SCA) para 7),
the respondent adduced the evidence of Shibambu and his colleague
Constable Makgaye. The appellant also testified.
[9] In this court
the respondent wisely abandoned the pleaded justification based on s
40(1)(
a
). The driving of a vehicle is an element of both NRTA
offences. The appellant did not drive the Ford in Shibambu’s
presence.
He was standing outside his stationary vehicle when the
police arrived. The two issues argued before us were (a) whether the
respondent
discharged the burden of proving that a warrantless arrest
was permissible in terms of s 40(1)(
b
) of the CPA; (b) if so,
whether the appellant discharged the burden of proving that Shibambu
exercised his discretion to arrest
irrationally (regarding the onus
resting on a claimant in this respect, see
Sekhoto
paras
45-53). In view of the conclusion I have reached on the first
question, it will be unnecessary to consider the second.
[10] In order to
make good the pleaded reliance on s 40(1)(
b
), the respondent
had to prove on a balance of probability that Shibambu reasonably
suspected the appellant of having committed
culpable homicide. This
entailed proof of two things: (a) that Shibambu in fact suspected the
appellant of having committed culpable
homicide; (b) that such
suspicion rested on reasonable grounds. The second requirement calls
for an objective assessment. The test
is not whether a peace officer
believes he has reason to suspect but whether, on an objective
approach, he in fact has reasonable
grounds for his suspicion (
Duncan
v Minister of Law and Order
1986
(2) SA 805
(A) at 814D-E;
W v Minister of Police
[2014] ZASCA 108
;
2015 (1) SACR 409
(SCA) para 8).
[11] Shibambu knew,
because the appellant told him, that the cyclist was knocked down by
a trailer hitched to a vehicle the appellant
was driving.
Accordingly, if Shibambu reasonably suspected the collision to have
been caused by the appellant’s negligence,
the case would be
one falling within s 40(1)(
b
). In an enquiry into negligence,
the fact that the appellant’s driver’s licence and that
the vehicle’s licence
disc had expired was irrelevant. Neither
circumstance pointed to negligence in the act of driving.
[12] Shibambu
conceded in cross-examination that the only person who provided him
with evidence regarding the accident was the appellant.
Although
there were bystanders by the time the police arrived, none of them
seemingly witnessed the accident. At any rate, Shibambu
and Makgaye
confirmed that no statements were taken from any bystanders. The
appellant’s version as furnished to Shibambu
was exculpatory.
[13] The physical
evidence at the scene was inconclusive but consistent with the
appellant’s version. Shibambu acknowledged
in cross-examination
that the cyclist had been carrying a plastic crate of bottles on the
back of his bicycle and that the broken
glass and wetness on the road
came from the bottles and their contents. He was shown one of the
police photographs from which it
appeared that the broken glass was
concentrated in the middle of the left lane of the road (there was a
single lane in each direction),
suggestive of a point of impact
towards the middle of the lane as stated by the appellant.
[14] I do not
consider, in the circumstances, that Shibambu could have formed the
reasonable suspicion that the accident was attributable
to the
appellant’s negligence. While Shibambu was not obliged to
accept the appellant’s say-so, and while further investigation
was warranted, he did not have statements and physical evidence
pointing to negligence on the appellant’s part. Negligence
could not be inferred from the sole fact that the trailer struck the
cyclist.
[15] Furthermore,
there is no indication in Shibambu’s evidence that he applied
his mind to the question of negligence or
even had a conception of
the requirement of negligence in relation to the crime of culpable
homicide. Although the deficiencies
in his evidence may have been
partly attributable to the fact that he chose to testify in English,
a language in which he was plainly
not fully proficient, the fact
remains that his evidence as we now have it is of a poor calibre. He
was asked in chief what he
understood by the offence of culpable
homicide. He replied that it is where ‘somebody is killed
without intention’.
He did not add that the crime required
proof of negligence and did not at any stage in his testimony give
evidence suggestive of
a process of reasoning by which he arrived at
a suspicion of negligence.
[16] Shibambu seems
to have thought that he should arrest the appellant just because
somebody died as a result of his driving a
vehicle with an expired
licence disc and without a valid driver’s licence. When first
invited to explain the arrest, Shibambu
said he told the appellant
‘
that due to driving the motor vehicle without a
licence, and the motor vehicle also, it is unroadworthy, the motor
vehicle due to
the unroadworthy and driving without a licence, is an
offence within the culpable homicide nature . . .. Yes, I am
arresting him
for the offences for the motor vehicle and the driver’s
licence.’
And
later, when the judge asked him to explain his reference to culpable
homicide, he said:
‘
I understand that should he have been cautioned
into taking consideration that the motor vehicle is unroadworthy and
the driver’s
licence also is invalid, that should have brought
him to some certain ideas to take preventative measures so that this
type of
incident could not happen in future.’
I
may add that a vehicle is not rendered unroadworthy by virtue of its
licence disc having expired.
[17] One cannot
conclude that Shibambu subjectively suspected the appellant of
culpable homicide merely because he had the label
‘culpable
homicide’ in his mind. The label is a shorthand reference to
the essential elements of the offence. An arresting
officer cannot be
said to suspect a person of culpable homicide unless the officer,
among other things, suspects that the suspect
acted negligently in
causing the deceased person’s death. Since the respondent did
not establish that Shibambu subjectively
thought that the appellant
had negligently caused the cyclist’s death, the respondent
failed to prove that Shibambu in fact
had the suspicion alleged in
the plea. And for the reasons I have given, any such subjective
suspicion by Shibambu would in any
event not have been based on
reasonable grounds.
[18] It follows that
the respondent therefore failed to discharge the onus of justifying
the arrest. It is thus unnecessary to consider
whether the decision
to arrest was not in any event vitiated by the other grounds which,
on Shibambu’s evidence, played a
part in his decision to arrest
the appellant.
[19] The court a quo
does not appear to have found that the arrest was justified on the
basis of a reasonable suspicion of culpable
homicide. The court
seemingly relied on the two NRTA offences. While acknowledging that
the commission of those offences would
not ordinarily justify a
warrantless arrest, the court a quo considered that there were
‘aggravating factors’ in the
present case, namely that
the appellant’s vehicle was involved in an accident and that
the accident was fatal to the cyclist.
I am doubtful of the
proposition that the statutory offences were aggravated by the
circumstance that the vehicle was involved
in an accident. Be that as
it may, the respondent only relied on the two NRTA offences as a
justification in terms of s 40(1)(
a
) of the CPA, a
justification which was only available if those offences were
committed in Shibambu’s presence, which they
were not.
[20] It follows that
the appeal must succeed. As to costs in the court a quo, there was no
justification for the appellant to have
brought his action in the
High Court. In his summons, which was issued in February 2014, some
eight months after the incident,
he claimed damages totalling R465
000 comprising (a) legal expenses in the criminal proceedings of R10
000; (b) past and future
medical expenses of R55 000; (c) past and
future loss of earnings of R200 000; and (d) general damages of R200
000. By the start
of the trial he had abandoned all these claims save
for general damages which were agreed in the sum of R150 000. The
evidence
does not show that the appellant’s 70-hour detention
could have caused any loss of earnings or medical expenses, and this
would have been known by the time summons was issued.
[21] In February
2014 the monetary jurisdiction of regional divisions of the
magistrates’ courts was R300 000, this amount
being increased
to R400 000 with effect from 1 June 2014. Any amount the appellant
could plausibly have recovered would have fallen
within the regional
division’s jurisdiction. Although in a pre-trial conference
both sides agreed that the matter should
not be transferred to
another court, the parties’ agreement, while a relevant
consideration, cannot dictate the appropriate
costs order. One must
also take into account the effect on the administration of justice in
the High Court of litigating low-value
claims in that forum. In this
particular case one must also bear in mind that any costs the
respondent is ordered to pay will come
from the public purse. I thus
consider that in the court a quo the appellant should be limited to
costs on the magistrate’s
court scale.
[22] As to the costs
in this court, each side used a single advocate below but two
advocates here. This was not reasonably necessary.
The case was a
straightforward one and the amount of damages modest. Indeed, the
appellant can be criticised for having sought
leave to appeal to this
court and the court a quo for having granted it. We were informed by
the appellant’s counsel that
the court a quo did not give
reasons for its order on the application for leave to appeal. If the
court a quo simply acceded to
the appellant’s request, it
failed in its statutory duty. Section 17(6)(
a
) of the
Superior
Courts Act 10 of 2013
requires a trial court to send an appeal to a
full court unless it considers:
‘
(i) that the decision to be appealed involves a
question of law of importance, whether because of its general
application or otherwise,
or in respect of which a decision of the
Supreme Court of Appeal is required to resolve differences of
opinion; or
(ii) that the administration of justice, either
generally or in the particular case, requires consideration by the
Supreme Court
of Appeal of the decision.’
Counsel
were quite unable to explain why any of these tests were thought to
have been satisfied in the present case.
[23] I wish to make
two concluding remarks about the conduct of the trial. First, there
was inappropriate acrimony in the exchanges
between counsel (being
the appellant’s present lead counsel and the respondent’s
present junior counsel). Such behaviour
is contrary to professional
decorum and does not serve the administration of justice. Second, the
trial judge intervened far too
often. On virtually every page of the
transcript she is recorded as making three or more interruptions.
Although her interventions
were not biased and may have been well
meant, they must have made counsel’s task very hard, since they
were unable to develop
any flow. It is not always possible or even
desirable for a judge to hold back his or her questions until the end
of a witness’
testimony, but interruptions to obtain clarity
should be kept within reasonable bounds so that counsel may pursue
legitimate lines
of questioning without interference.
[24] The
following order is made.
(1) The appeal succeeds with costs.
(2) The order of the court a quo is set aside and replaced with the
following order:
‘
(a)
The defendant is ordered to pay the plaintiff R150 000 plus interest
thereon at the prescribed rate from 9 September 2013 to
date of
payment.
(b)
The defendant is ordered to pay the plaintiff’s costs of suit
on the magistrate’s court scale.’
___________________
O
L Rogers
Acting
Judge of Appeal
APPEARANCES
For Appellant
E Botha (with him T Mogale)
Instructed by
Gildenhuys Malatji Inc,
Pretoria
Honey Attorneys,
Bloemfontein
For Respondent
A C Ferreira SC (with him L
Pretorius)
Instructed by
State Attorney, Pretoria
State Attorney, Bloemfontein