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[2007] ZACC 15
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Minister of Safety and Security v Van Niekerk (CCT74/06) [2007] ZACC 15; 2007 (10) BCLR 1102 (CC); 2008 (1) SACR 56 (CC) (8 June 2007)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 74/06
[2007]
ZACC 15
MINISTER
OF SAFETY AND SECURITY Applicant
versus
ANTUS
VAN NIEKERK Respondent
Heard
on : 3 May 2007
Decided
on : 8 June 2007
_______________________________________________________________
JUDGMENT
_______________________________________________________________
SACHS
J:
Introduction
The
Minister of Safety and Security seeks a ruling from this Court on
the powers of police officers to effect arrests. He wishes
to
accomplish this through the medium of an application for leave to
appeal against a judgment and order of the Port Elizabeth
High
Court in which a claim for damages based on assault and wrongful
arrest and detention was upheld with costs.
On
Saturday 9 October 2004 in Bethelsdorp, Port Elizabeth, Mr Van
Niekerk (the successful plaintiff in that matter and the respondent
in this application) was a member of a group of people that had
gathered in a parking lot outside a night club. He arrived between
2pm and 3pm. Music was being played and alcoholic beverages
consumed. Approximately two hours after his arrival between 10
and
15 police vehicles appeared. The police officers started taking
fingerprints of members of the group to verify whether or
not those
present had any outstanding warrants of arrest. Twice Mr Van
Niekerk broke away from attempts to take his fingerprints,
and he
was arrested and detained for approximately four hours before being
released. He suffered injuries to his face, chin,
left ear,
elbows, hands, wrists, knees and left shoulder. This much is
common cause. However, different versions were given
about the
circumstances of the arrest.
The
issues before the trial Court were whether Mr Van Niekerk was
disorderly before the interaction with the police or only became
recalcitrant after the police had provoked him, and whether Mr Van
Niekerk was injured because of his own conduct or as a result
of an
assault by the police officers.
The
Minister, who is the applicant in this matter, alleged that the
fingerprints were taken on a voluntary basis. He denied that
the
injuries were inflicted by the police officers. According to
evidence given on his behalf, Mr Van Niekerk was drunk and
disorderly and injured himself after refusing to give his
fingerprints, fleeing from the police and then tripping over his
own feet. The Minister maintains that because Mr Van Niekerk was
drunk and disorderly he was lawfully arrested.
Mr
Van Niekerk, on the other hand, states that the police twice
forcibly endeavoured to obtain his fingerprints. After having
initially objected to having his fingerprints taken, he returned to
the officer who was carrying out the procedure. On the second
attempt to take his fingerprints there was a struggle between him
and the police officer. He pulled loose and ran away. Another
police officer caught him from behind, pushed him to the ground,
assaulted him, threw him roughly into the police van and locked
him
up for some four hours.
The
trial Court upheld in broad terms the version of Mr Van Niekerk,
basing its findings on an assessment of the credibility of
the
witnesses for both sides and the probabilities of their respective
versions. The Minister unsuccessfully applied for leave
to appeal
to the full bench of the High Court and then to the Supreme Court
of Appeal. He has now applied to this Court for
leave to appeal
against the judgment and order of the trial Court.
Is
a constitutional question raised?
In
his application for leave to appeal the Minister submitted that the
current litigation raises significant questions pertaining
to the
exercise of the discretion of police officers to effect an arrest
under section 40(1)(a) of the Criminal Procedure Act
(the CPA).
1
He contended that since the exercise of this discretion concerns
the freedom of an individual and the ability of the police
to
exercise their constitutional duty to maintain law and order, it
raises a constitutional question.
More
specifically the Minister submitted that the following
constitutional point arose from the decision of the trial Court:
â
In
circumstances where police officers are entitled to summarily arrest
somebody (in this case in terms of Section 59(1)(d) and
(e) of the
Eastern Cape
Liquor Act, No. 10 of 2003
, read with the provisions of
Section 40(1)(b)
of the
Criminal Procedure Act, No. 51 of 1977
), are
they constitutionally obliged to first of all give a written warning
to such a person and not to arrest him, notwithstanding
the
provisions of the said legislation that allow them to arrest such
persons?â
2
At
the hearing counsel for the Minister conceded that if Mr Van
Niekerk had not committed the offence of being drunk and
disorderly,
as the High Court held to be the case, there was no
basis for the arrest. Accordingly, if this Court does not upset
the findings
of fact by the trial Court, no constitutional question
would be reached. He contended, however, that the facts were
sufficiently
connected to a constitutional issue to give this Court
jurisdiction. He therefore urged the Court to reappraise the
factual
findings. Alternatively if the Court were not itself
disposed to re-examine the facts, it should remit the matter to the
Supreme
Court of Appeal for it to reconsider the facts.
This
Court, as any court of appeal, would be slow to interfere with
findings of fact by a trial court based on a careful assessment
of
the credibility of witnesses and the probabilities of their
respective versions. These findings established that Mr Van
Niekerk had not been disorderly prior to his arrest, and that he
had not committed the offence for which he was arrested. The
constitutional question of how to balance out the rights of the
individual as against the duties of the police to protect the
community, accordingly did not arise. Although there can be
circumstances where a clear mistake of fact can possibly justify
the re-examination by this Court of a factual finding made by a
trial court,
3
this is not one of those cases. And since this is not a case where
the facts are sufficiently connected to a constitutional
issue as
to render it in the interests of justice to re-examine the factual
finding, it is not necessary to consider whether
this Court has the
power to remit the matter to the Supreme Court of Appeal to
reconsider the factual findings made by the trial
Court.
Confronted
with these difficulties, counsel for the Minister indicated that he
had a second string to his bow. He submitted that
the trial judge
had directly raised a constitutional issue in his judgment when he
held that, even if he was to accept that Mr
Van Niekerk was drunk
and disorderly, the police officer, given his constitutional
duties, did not exhaust the option of using
a written notice to
ensure the presence of Mr Van Niekerk in court. The High Court had
further remarked that an unqualified
application of the police
practice of keeping inebriated people in detention for four hours
to sober up could never pass constitutional
scrutiny, because the
constitutional guarantee of dignity and liberty mandated at the
very least that police officers apply their
minds to the specific
circumstances of each person. The trial judge went on to state
that:
â
In
this regard I am in respectful agreement with the approach adopted
by BERTELSMANN, J, in the unreported matter of
ANNELE LOUW &
ANOTHER v THE MINISTER OF SAFETY AND SECURITY & FOUR OTHERS
,
a decision in the High Court of South Africa in the Transvaal
Provincial Division with Case No. 8835/03, more particularly at
pages 11 to 18 of the judgment. Thus as I stated even on its own
version, I am of the opinion that the defendant has not discharged
its onus as regards the arrest and detention of the plaintiff.â
4
He
emphasised that on the police version itself, Mr Van Niekerk was
sufficiently sober to understand his rights when they were read
to
him, which indicated that a written notice could have been served on
him instead of his being arrested and detained.
I
am satisfied that in this respect the trial judge did advance
propositions which clearly have a constitutional dimension, and
on
this ground we have jurisdiction to hear the matter. The question
remains, however, whether it is in the interests of justice
for us
to do so.
The
interests of justice
Ordinarily
it is not in the interests of justice to grant leave to appeal
where the evidence clearly shows that no practical relief
can be
given to the applicant. Nevertheless, the Minister submits that it
would be in the interests of justice for this Court
to hear the
appeal, since the current matter impacts substantially on questions
relating to the maintenance of law and order
by the police in our
democratic society. He refers to two conflicting judgments by the
Pretoria and Johannesburg High Courts
respectively, and contends
that the effect of this conflict is to obscure the legal position
pertaining to the obligations of
police officers when exercising
their discretion to make an arrest. He asserts that it is in the
interests of justice for this
Court to articulate constitutionally
correct criteria applicable to arrests, and by so doing elucidate
the legal position decreed
by the Constitution.
The
first case to which he refers is
Louw and Another v Minister of
Safety and Security and Others.
5
In this matter Bertelsmann J held that if an accused or a suspect
does not present a danger to society, will in all probability
stand
his or her trial, will not harm himself or herself or others, and
may be able and keen to disprove the allegations against
him or
her, an arrest will ordinarily not be the appropriate way of
ensuring his or her presence at court.
6
He stated that the pre-constitutional approach reflected in
Tsose
v Minister of Justice and Others
had to be revisited,
7
and that if there was no reasonable apprehension that the suspect
will abscond or fail to appear in court should he or she not
be
arrested, then it is constitutionally untenable to exercise the
power of arrest.
8
In
Charles v Minister of Safety & Security
,
9
on the other hand, the judgment in
Louw
was rejected as
wrong.
10
Goldblatt J held that the legislator granted a peace officer the
right to make an arrest in the circumstances set out in section
40
of the CPA, and created a situation where due compliance with that
section by the peace officer is lawful and affords him
or her
protection against an action for unlawful arrest.
11
He stated that a court had no right to impose further conditions
on peace officers. To do so would, he held, open a Pandoraâs
box
where the courts would be called upon to enquire into the
reasonableness of the exercise of the discretion to arrest in a
variety of circumstances and peace officers would be called upon to
make value judgments every time they effect an arrest.
12
The
Minister claims that this matter presents a viable test case for
this Court to clarify the law pertaining to arrest, and to
establish the criteria that the Constitution commands. He asserts
that the fact that hundreds of wrongful arrest claims are
awaiting
the outcome of this application attests to the significance of this
application for the law pertaining to arrest.
To
my mind the present matter is far from constituting a viable test
case as claimed. On the contrary, it demonstrates that the
constitutionality of an arrest will almost invariably be heavily
dependent on its factual circumstances. Nothing in the judgment
of
the trial Court supports the proposition that that Court purported
to establish a general rule concerning the issuing of a
warning
instead of making an arrest. The judgment itself is based on the
notion that the lawfulness of an arrest is highly fact-specific.
Such conflict as may exist between
Louw
and
Charles
is simply not raised by the facts of this case.
Furthermore,
those involved in the day-to-day exercise and supervision of the
power to make arrests are usually best positioned
to establish
appropriate operational parameters concerning the discretion to
arrest. This is an area where internal regulation
should be
encouraged. Indeed, there has in fact been extensive internal
regulation concerning arrests.
Counsel
for Mr Van Niekerk pointed out that the Minister was fully alive to
the dilemma of how to control the discretion of police
officers
under section 40, and referred this Court to Standing Order (G) 341
dealing with arrest and the treatment of an arrested
person.
13
This Standing Order makes it clear that arrest is a drastic
procedure which should not be used if there are other effective
means of ensuring that an alleged offender could be brought to
court.
14
They do not suggest, and the trial Court did not hold, that drunk
and disorderly persons who are not in a state to receive and
understand a written warning to appear in court, should not be
arrested. As the trial Court indicated, much depends on the
circumstances of the case.
15
It should be borne in mind that should the Minister wish to
provide greater guidance to police officers concerning their powers
of arrest under section 40 of the CPA, he has executive and
legislative options available to him.
I
conclude therefore that nuanced guidelines already exist. In the
circumstances it would not be desirable for this Court to
attempt
in an abstract way divorced from the facts of this case, to
articulate a blanket, all-purpose test for constitutionally
acceptable arrests. As the guidelines themselves underline, the
lawfulness of an arrest will be closely connected to the facts
of
the situation.
I
accordingly hold that it is not in the interests of justice for the
application for leave to appeal to be granted.
The
Minister has unsuccessfully sought to have this matter dealt with
as a test case and must pay the costs incurred by Mr Van
Niekerk,
such costs to include those occasioned by the employment of two
counsel.
Order
The
application for leave to appeal is dismissed with costs, such costs
to include costs occasioned by the employment of two counsel.
Langa
CJ, Moseneke DCJ, Madala J, Mokgoro J, Navsa AJ, Ngcobo J, Nkabinde
J, OâRegan J, Skweyiya J and Van der Westhuizen J concur
in the
judgment of Sachs J.
For
the Applicant: Advocate MJ Lowe SC, Advocate JD Huisamen and Advocate
RB Laher instructed by The State Attorney, Port Elizabeth.
For
the Respondent: Advocate HJ van der Linde SC and Advocate PH Mouton
instructed by GP van Rhyn, Minnaar & Kie Ing.
1
Act
51 of 1977. Section 40(1)(a) provides that â[a] peace officer may
without warrant arrest any person who commits or attempts
to commit
any offence in his presenceâ.
2
Section
40(1)(b) of the CPA provides as follows:
â
A peace officer
may without warrant arrest any person whom he reasonably suspects of
having committed an offence referred to in
Schedule 1, other than
the offence of escaping from lawful custodyâ.
Schedule 1 includes the
following offences: treason; sedition; public violence; murder;
culpable homicide; rape; indecent assault;
bestiality; robbery;
kidnapping; childstealing; assault, when a dangerous wound is
inflicted; arson; malicious injury to property;
breaking or entering
any premises, whether under the common law or a statutory provision,
with intent to commit an offence; theft,
whether under the common
law or a statutory provision; receiving stolen property knowing it
to have been stolen; fraud; forgery
or uttering a forged document
knowing it to have been forged; offences relating to the coinage;
any offence, except the offence
of escaping from lawful custody in
circumstances other than the circumstances referred to immediately
hereunder, the punishment
wherefor may be a period of imprisonment
exceeding six months without the option of a fine; escaping from
lawful custody, where
the person concerned is in such custody in
respect of any offence referred to in Schedule 1 or is in such
custody in respect of
the offence of escaping from lawful custody;
and any conspiracy, incitement or attempt to commit any offence
referred to in Schedule
1.
3
Rail
Commuters Action Group and Others v Transnet Ltd t/a Metrorail and
Others
[2004] ZACC 20
;
2005 (2) SA 359
(CC);
2005 (4) BCLR 301
(CC) at para 52.
4
Antus
van
Niekerk v Minister of Safety and Security
(SECLD) Case No 1212/05, 15 June 2006, unreported at 24.
5
2006
(2) SACR 178
(T) .
6
Id
at 185c/d-d/e.
7
Id
at 186b-c read with 185h. In
Tsose
v Minister of Justice and Others
1951 (3) SA 10
AD
at
17F/G-G/H it was held that even though an arrest is a harsher method
of initiating a prosecution than a summons, if circumstances
exist
which make it lawful under a statutory provision to arrest a person
as a means of bringing him or her to court, such an arrest
is not
unlawful even if it is made because the arrestor believes that the
arrest will be more harassing than the summons.
8
Louw
above n at 187d-e.
9
[2006]
JOL 17224
(W).
10
Id
at 11.
11
Id
at 12.
12
Id.
13
Standing
Order (G) 341, issued under Consolidation Notice 15/1999 and
entitled
âArrest and the Treatment of an Arrested Person until Such Person
is Handed Over to the Community Service Centre Commanderâ,
provides as follows:
â
1. Background
Arrest constitutes
one of the most drastic infringements of the rights of an
individual. The rules that have been laid down by
the Constitution,
1996 (Act No. 108 of 1996), the Criminal Procedure Act, 1977 (Act
No. 51 of 1977), other legislation and this
Order, concerning the
circumstances when a person may be arrested and how such person
should be treated, must therefore be strictly
adhered to.
.
. .
Securing
the attendance of an accused at the trial by other means than
arrest
There
are various methods by which an accusedâs attendance at trial may
be secured. Although arrest is one of these methods,
it
constitutes one of the most drastic infringements of the rights of
an individual and a member should therefore regard it as
a last
resort.
It
is impossible to lay down hard and fast rules regarding the manner
in which the attendance of an accused at a trial should
be secured.
Each case must be dealt with according to its own merits. A
member must always exercise his or her discretion in
a proper
manner when deciding whether a suspect must be arrested or rather
be dealt with as provided for in subparagraph (3)
below.
A
member, even though authoris ed by law, should normally refrain
from arresting a person ifâ
the
attendance of a person may be secured by means of a summons as
provided for in
section 54
of the
Criminal Procedure Act, 1977
; or
the
member believes on
reasonable grounds
that a magistrateâs
court, on convicting such person of that offence, will not impose
a fine exceeding the amount determined
by the Minister from time
to time by notice in the
Government Gazette
, (at present
R1500-00),
in which event such member may hand to the
accused a written notice [J 534] as a method of securing his or
her attendance in
the magistrateâs court in accordance with
section 56
of the
Criminal Procedure Act, 1977
.
The
o bject of an arrest
General
rule
As a general rule,
the object of an arrest is to secure the attendance of such person
at his or her trial. A member may not arrest
a person in order to
punish, scare, or harass such person.
Exceptions
to the general rule
There
are circumstances where the law permits a member to arrest a person
although the purpose with the arrest is not solely to
take the
person to court. These circumstances are outlined below and
constitute exceptions to the general rule that the object
of an
arrest must be to secure the attendance of an accused at his or her
trial. These exceptions must be studied carefully and
members must
take special note of the requirements that must be complied with
before an arrest in those circumstances will be regarded
as lawful.
Arrest
for the purposes of further investigation
. . .
Arrest
to verify a name and/or address
. . .
Arrest
in order to prevent the commission of an offence
. . .
Arrest
in order to protect a suspect
. . .
Arrest
in order to end an offence
.
. .
Manner
of effecting an arrest
.
. .
(2) Arrest without
a warrant
(a) It is only in
exceptional circumstances where a member is specifically authorised
by an Act of Parliament (for example,
sections 40
and
41
of the
Criminal Procedure Act, 1977
) to arrest a person without a warrant,
that a person may be arrested without a warrant. Any arrest without
a warrant, which is
not specifically authorised by law, will be
unlawful.â
14
The
Standing Order is not the only proactive step which had been taken
by the Minister in providing substantive criteria to be applied
by
police officers when evaluating the options available. Counsel for
Mr Van Niekerk pointed out that training and text books
are also
provided to police officers that substantially deals with the
exercise of the discretion to arrest. He referred to Joubert
(ed)
Applied
Law for Police Officials
2 ed (Juta, Lansdowne
2001) Ch 12.
15
In
this respect the recent US Supreme Court decision in
Atwater
et al v City of Lago Vista
et al
532
US 318
(2001) is clearly distinguishable. In that case a mother of
two young children was arrested for failing to fasten her seatbelt
and that of her children. The Supreme Court divided five to four.
The majority felt that a âbright lineâ had to be drawn,
and if a
police officer had probable cause to believe that a person had
committed an offence in his or her presence, independently
of the
circumstances, a warrantless arrest was consistent with the Fourth
Amendment. The minority held that the value of clarity
should not
be sought at the expense of liberty and privacy, and that what
flexible arrest rules lacked in precision they made up
for in
fidelity to the Fourth Amendmentâs command of reasonableness and
sensitivity to the competing values of that Amendment,
further, that
the flexible rule overturned by the majority had been workable and
easily applied by officers on the street for the
preceding 30 years.
In the
light of the values of the Constitution and the provisions of
section 40 of the CPA and the Standing Orders, it is clear
that
South African law would not justify an arrest on the facts in
Atwater
.