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[2013] ZAWCHC 183
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Minister of Safety and Security v Kleinhans (149/2008) [2013] ZAWCHC 183; 2014 (1) SACR 613 (WCC) (17 December 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No: 149/2008
DATE:
17 DECEMBER 2013
In
the matter between:
MINISTER
OF SAFETY AND
SECURITY
.........................................................
Appellant
And
AJ
KLEINHANS
..............................................................................................
Respondent
NOTES ON
JUDGMENT: 17 DECEMBER 2013
LE
GRANGE, J
[1] Late
one Sunday afternoon on 11 December 2005, the relatively peace and
tranquillity of Church Street in Riversdale was disturbed
when the
police, with some force, arrested and briefly detained the Respondent
after he failed to heed a stop sign. One can arguably
say the
contravention of such a minor offence hardly justifies an arrest and
detention of an offender. The accepted practice where
an offence of
this nature is committed in the presence of traffic officials is the
issuing of a fine on the spot. The offender
may then elect to pay the
fine admitting his/her guilt or appear in a lower court to contest
his/her guilt. A closer scrutiny of
the facts and the law, in the
present instance, brings however a different perspective to this
matter.
[2] The
Respondent sued the Appellant for general damages in the sum of R100
000 for an assault and unlawful arrest and detention.
The Magistrate
upheld the Respondent’s claim on the merits and awarded damages
in the amount of R60 000 to the Respondent.
The appeal lies against
the whole of the judgment of the Magistrate’s Court.
[3] The
factual matrix underpinning this matter can in brief be summarised as
follows: The Respondent at the time of the incident
was 56 years old
and a farmer of Riversdale. On 11 December 2005, late in the
afternoon, the Respondent was driving his farm bakkie.
He was
accompanied by his sister and his two dogs. He approached the
intersection at the N2 near Riversdale with his vehicle. There
are
two versions as to what exactly transpired at the intersection. But
on all accounts the Respondent failed to comply with the
stop sign.
According to the Respondent the wheels of his bakkie skidded on some
loose gravel on the road surface which caused him
not to stop behind
the stop line.
[4] The
police officials who testified at the trial had a different version.
According to them the Respondent came to stop about
halfway into the
intersection only after he realised the police and traffic officials
were standing a distance away from the intersection.
[5]
According to the Respondent, he drove into Church Street, on his way
home, which is in Riversdale. He heard the sirens and blue
lights of
police vehicles behind him and moved to the side of the road. The
police stopped him and requested him to get out of
his vehicle, which
he did. The police thereafter requested him to go with them to the N2
where the stop sign was. He refused. According
to him he did nothing
wrong. He further testified that the police never told him what he
did wrong nor did they ask for his driver’s
licence. He
adamantly refused to go with them. He decided to get back into his
vehicle to leave the scene.
[6] It
is at this point that events took a turn for the worse. The police
officers grabbed him. He was physically dragged out of
his car and
pepper sprayed. The Respondent was eventually put in the police
vehicle and taken to the police station where he was
given a fine for
failing to stop and riotous behaviour.
[7] The
officials who testified in the Appellant’s case had an entirely
different version of what transpired after the Respondent
was stopped
in Church Street. It is not in dispute that Constable Moses George,
Constable Mogorotse and Reservist-Sergeant Botes
were on duty at the
main intersection between the N2 – Highway and the Riversdale
turnoff on the day in question. According
to George, a serious
accident could have resulted if cars were travelling on the N2 when
the Respondent’s vehicle failed
to heed the stop sign. George
further testified to the sequence of events in Church Street.
According to him, he introduced himself
to the Respondent. He asked
the Respondent why he did not stop at the stop sign. He also
requested the Respondent’s drivers’
licence. After the
drivers’ licence was produced he requested the Respondent to
follow him to the police station so that
he could issue him with a
fine. George was unable to issue the fine on the spot because the
fine book they had in their vehicle
was full. They thus needed to use
the fine book at the closest police station. The Respondent was also
given the liberty to drive
in his own vehicle to the police station,
which on all accounts is a few hundred metres away in the same
street. After that the
Respondent switched on his vehicle with the
apparent intention of leaving the scene, and had to be stopped. He
requested the Respondent
to get out of his vehicle and obey his
instructions. Again the Respondent resisted, closed his vehicle’s
door and was adamant
that he was going home. The Respondent became
aggressive and force was used to arrest him. He was dragged by his
feet and it was
only when pepper spray (a single burst) was applied
that the two police officers succeeded in restraining the Respondent
and managed
to put him in the police vehicle. The Respondent was
taken to the police station. It appears that the Respondent was
detained
for approximately 45 minutes. During this period a fine was
issued to him where after he was released to go home.
[8] The
Magistrate in summing up the evidence came to the conclusion that he
was not impressed by any of the witnesses who testified
in this case.
I am in agreement with the views of the magistrate in this regard.
However, regarding the central issue as to whether
the Respondent in
fact stopped at the intersection of the N2 or not, the evidence of
the police officers is far more convincing
and probable. The
Magistrate’s finding that the Respondent did contravene the
provisions as contemplated in s 58 of Act 93
of 1996 is on a
conspectus of all the evidence unassailable and in my view correct.
[9] The
remaining issue for consideration is whether the subsequent arrest
and detention of the Respondent was justified. Put differently,
did
such a minor offence justify the arrest of the Respondent.
[10] The
Magistrate found that the offence did not justify the arrest of the
Respondent. Relying on Minister of Safety and Security
v Sekhoto &
Another 2011(5) SA 367 (SCA) he found that the arresting officer
George did not exercise his discretion to arrest
the Respondent on a
rational basis. The Magistrate’s reasoning in this regard was
framed in Afrikaans as follows:
“
In
die feite wat ek bevind het in hierdie saak dat daar wel volgens die
weergawes van beide die eisers, sowel as die eerste verweerder
se
getuienis, ‘n misdaad soos gelys in Skedule 1 gepleeg was. En
dat hierdie misdaad inderdaad dit daar stel, was die oortreding
van
artikel 58 Wet 93 van 1996, versuim om by ‘n stopteken te stop,
is dit my bevinding dat hierdie misdaad inderdaad so,
om die Regter
aan te haal, …(onduidelik) was, dat dit nie arrestasie
regverdig nie.
Die
arrestasiebeampte in hierdie aangeleentheid, konstabel George het dan
ook mynsinsiens geensins sy diskresie behoorlik uitgeoefen
nie. Want
volgens sy eie weergawe was die bestuurderslisensie van mnr
Kleynhans versoek. En as hy die bestuurderslisensie
kon versoek het,
kon hy hier ook mnr Kleynhans, die eiser se woonadres versoek het. En
kon hy ‘n klagte aanhangend gemaak
het en ‘n dagvaring op
die betrokke eiser laat beteken het.
Dit is
derhalwe hierdie hof se bevinding dat die eerste verweerder nie
daarin geslaag het om aan hierdie hof oppenower (sic) van
waarskynlikhede te bewys, dat sy arrestasie van die eiser inderdaad
regmatig was nie.”
[11]
Counsel for the Appellant, Mr O’ Brien, in brief argued that
the evidence of George clearly demonstrates that he acted
at all
times reasonably. Moreover, the criticism that he failed to ask the
residential address of the Respondent, which could have
resulted in
an alternative method of securing his attendance at court, is
unwarranted. According to Mr O’ Brien the Respondent
was
adamant that George never asked for his drivers’ licence.
Moreover, given the Respondent’s conduct and attitude
on the
day, he would in all probability not have given his residential
details to the police. Furthermore, the standard of rationality
is
not breached when an officer exercises his discretion in a manner
other than that deemed optimal by the Court.
[12] The
principal submission of the counsel for the Respondent, Mr TD
Potgieter SC, was that the offence the Respondent committed
was so
relatively trivial that his arrest and detention, in the present
circumstances, could never be regarded as rational, fair
or bona
fide. Mr Potgieter conceded that the request by the arresting
officers to the Respondent to accompany them to the police
station
was not unreasonable but contended that the magistrate’s
approach and conclusion in the matter cannot be faulted.
[13] In
terms of
s 40(1)(a)
of the
Criminal Procedure Act 51 of 1977
, a
peace officer may without a warrant arrest a person who commits or
attempts to commit an offence in his/her presence. The jurisdictional
requirements which must be met before the power conferred in terms of
s 40(1)(a)
may be exercised are as follow:-
(1) The
arrestor must be a peace officer;
(2) An
offence must have been committed or there must have been an attempt
to commit an offence; and
(3) Such
commission or attempt must have been in his or her presence
[14] This
section clearly requires the existence of a particular factual
situation before the peace officer’s power to arrest
without a
warrant can come into existence. If the factual circumstances do not
arise the peace officer has no right to embark upon
an arrest.
Although arrest is the most drastic method to secure a person’s
attendance at his trial and should ordinarily
be confined to cases
where such persons face a relatively serious charge, the power of
arrest without warrant covers all offences,
no matter how trivial,
when committed in the presence of a peace officer.
[15] In
the present instance the Magistrate quite correctly found that the
Respondent contravened the provisions of
section 58
of the
National
Road Traffic Act 93 of 1996
by failing to stop at a stop sign. In
this regard,
s 58
provides as follows:-
“(1) Subject
to subsection (3), no person shall, unless otherwise directed by a
traffic officer, fail to comply with any
direction conveyed by a road
traffic sign displayed in the prescribed manner.
(2) In
any prosecution for a contravention of or failure to comply with a
provision of subsection (1), it shall be presumed, in
the absence of
evidence to the contrary, that the road traffic sign concerned was
displayed by the proper authority under the
power conferred by this
Act and in accordance with its provisions”.
[16] On
a proper reading of the provisions of
s 58
of the
National Road
Traffic Act and
the regulations promulgated under the same Act, the
jurisdictional requirements of
s 40
(1) of the
Criminal Procedure
Act, in
the present instance, were clearly satisfied.
[17]
This however is not the end of the enquiry. A further very important
consideration arises once the jurisdictional facts are
present and
that is whether the police officer properly exercised his/her
discretionary power to arrest or not. In this regard
see Sekhoto
supra at paragraph [28]. This discretion must be exercised rationally
in relation to the power of arrest and not arbitrarily
or in bad
faith. This is an objective enquiry with relation to the facts and
the circumstances under which the arrest took place.
In Sekhoto supra
at paragraph [39] the following was held:-
“
This
would mean that peace officers are entitled to exercise their
discretion as they see fit, provided that they stay within the
bounds
of rationality. The standard is not breached because an officer
exercises the discretion in a manner other than that deemed
optimal
by the court. A number of choices may be open to him, all of which
may fall within the range of rationality. The standard
is not
perfection or even the optimum, judged from the vantage of hindsight
– so long as the discretion is exercised within
this range, the
standard is not breached.“
[18] In
my view the magistrate, although referring to the Sekhoto decision,
adopted the incorrect approach in coming to his conclusion.
The
present law regarding arrest without a warrant can be summarised as
follows:-
(I) the
jurisdictional prerequisites for
s 40(1)(b)
must be present;
(ii) the
arrester must be aware that he or she has a discretion to arrest;
(iii)
the arrester must exercise that discretion with reference to the
facts;
(iv)
there is no jurisdictional requirement that the arresting officer
should consider using a less drastic measure than arrest
to bring the
suspect before court.
(See
also Hiemstra’s Criminal Procedure [Issue 6] 5-8)
[19]
Although the magistrate criticised the quality of the evidence given
by all the witnesses in the matter, on a reading of the
record, the
version of events proffered by the Respondent and probabilities at
the time of the arrest do not favour him. According
to the Respondent
the police officials never informed him why they stopped him. They
did not ask for his drivers’ licence
and when he refused to go
with them they immediately grabbed and assaulted him. The magistrate,
on the probabilities correctly
in my view, did not rely upon this
version.
[20] On
the other hand, the version as advanced by George is far more
plausible. The magistrate appears to have also found on the
probabilities in favour of George’s version and accepted that
he must have asked the Respondent’s drivers’ licence.
If
this is the case, then the objective enquiry whether the exercise of
the discretion to have embarked upon an arrest without
a warrant was
rational and justified, must be determined on the version advanced by
the Appellant. The reasons advanced by George
for the arrest were the
following:-
1. He
requested the Respondent to follow him to the police station so that
he could issue him with a fine;
2. He
also requested the Respondent to follow the police vehicle to the
police station;
3. The
Respondent refused and indicated that he was going home;
4. After
that the Respondent switched on his vehicle with the apparent
intention to leave the scene so he had to be stopped;
5.
George requested the Respondent to get out of his vehicle and obey
his instructions. Again the Respondent resisted;
6. The
Respondent resisted this and closed his vehicle’s door;
7. The
Respondent became aggressive and force was applied to arrest him.
[21] On
these accepted facts, viewed objectively, the criticism of the two
arresting officers’ conduct by the magistrate in
my view was
unwarranted and not capable of a finding that the discretion to
arrest was exercised mala fide, irrationally or in
an arbitrary
manner. The intention and conduct of the arresting officers was
clearly aimed at bringing the Respondent to justice.
There is no room
for the suggestion, given the peculiar circumstances of this case,
that it was incumbent upon the arresting officers
to have first
considered an alternative method of ensuring the Respondent’s
attendance at Court, before effecting the arrest.
To view it
differently will, in my view, result in unintended consequences that
may be open to serious abuse and possibly unethical
behaviour. As was
pointed out in Sekhoto, supra the standard of rationality is not
breached when an officer exercises the discretion
in a manner other
than that deemed optimal by the Court. The standard is not perfection
or even the optimum, judged from the vantage
of hindsight. Moreover,
George’s evidence is clear that the Respondent would not have
been arrested if he had followed his
instructions and that it was the
intention always to issue the Respondent with a fine. Furthermore,
there is no supporting or credible
evidence from the Respondent that
he was detained in the police cell as he claims. In fact he went home
after the fine was issued.
There is also no evidence to suggest that
the arresting officers used excessive force to negate the
Respondent’s resistance.
[22]
During argument, an issue arose whether the arrest of the Respondent
by taking him to the police station for the sole purpose
of issuing
him a fine (rather than bringing him before a magistrate) was lawful.
Counsel submitted further written submissions
in this regard.
[23] As
already mentioned, the police officials in the present case relied on
the power of arrest conferred by
s 40(1)(a)
of the
Criminal Procedure
Act. Section
50 of the same Act regulates the procedure to be
followed after arrest. Section 50(1) provides that any person who is
arrested
for allegedly committing an offence, or for any other
reason, shall as soon as possible be brought to a police station and
informed
of his or her right to institute bail proceedings; and if
the person is not released on bail, he or she must be brought before
a lower court as soon as reasonably possible but not later than 48
hours after the arrest.
[24] It
is no doubt this statutory scheme which led Harms DP to say the
following in paragraph [44] of Sekhoto (my underlining):
“
While
the purpose of the arrest is to bring the suspect to trial, the
arrestor has a limited role in that process. He or she is
not called
upon to determine whether the suspect ought to be detained pending a
trial. That is the role of the court (or in some
cases a senior
officer). The purpose of the arrest is no more than to bring the
suspect before the court (or the senior officer)
so as to enable that
role to be performed. It seems to me to follow that the enquiry to be
made by the peace officer is not how
best to bring the suspects to
trial: the enquiry is only whether the case is one in which that
decision ought properly to be made
by a court (or the senior
officer). Whether his decision on that question is rational naturally
depends upon the particular facts,
but it is clear that in cases of
serious crime… a peace officer could seldom be criticised for
arresting a suspect for that
purpose. On the other hand, there will
be cases, particularly where the suspected offence is relatively
trivial, where the circumstances
are such that it would clearly be
irrational to arrest…”.
[25]
The provisions of
s 56
of the
Criminal Procedure Act allow
a peace
officer, who believes on reasonable grounds that an offence has been
committed and that a magistrate, on convicting such
a person of that
offence, will not impose a fine exceeding the amount determined by
the Minister from time to time in the Gazette
whether that offender
is in custody or not, to issue a written notice to such an offender
whereby he or she may admit guilt in
terms of
s 57
of the CPA without
appearing in court. The offender may decide not to pay the fine but
contest his guilt by appearing in court.
In terms of
s 56(2)
, if the
offender is already in custody, the effect of a written notice handed
to him shall be that he be released forthwith from
custody. According
to the commentary by Hiemstra, Criminal Procedure, the section
envisages the saving of time and money (for both
arrested persons and
the State) incurred because of unnecessary detentions and court
appearances. The written notice to appear
offers a person the
opportunity to avoid detention from the beginning or to end it in the
police station, as well as to avoid later
court appearance as long as
the person pays the determined admission-of-guilt fine. These
written notices are usually used for
relatively minor offences where
a peace officer is of the view that the court will not impose a fine
greater than R5 000 (GM R62
in Government Gazette 36111 of 30 January
2013).
[26] In
the present case George and his colleagues did not arrest the
Respondent with the purpose of enabling a magistrate or senior
officer to determine whether the Respondent should be detained in
custody pending his trial or rather released on bail. They arrested
him for the purposes of getting him to the police station and
detaining him there long enough so that they could issue to him a
fine, ie the written notice contemplated in
s 56
of the
Criminal
Procedure Act. However
, I do not think that the passage I have quoted
from Sekhoto should be read as laying down that an arrest is
impermissible unless
exercised for the purpose of enabling a court or
senior officer to determine whether the offender should be granted
bail or further
detained. In most cases that will indeed be the
enquiry, because in most cases it will be envisaged that the
procedure prescribed
by
s 50
will need to be followed pursuant to the
arrest. However, the more general purpose of an arrest is to bring
the suspect to justice
(Sekhoto para [42]). That can be achieved in
more than one way. The issuing of the written notice contemplated in
s 56
is one of those ways, but in order for that method to be
followed the peace officer needs to have the materials to issue a
notice
in the form prescribed by that section. If, as in the present
case, the peace officer does not have the necessary materials
(because
his fine book is full), it is permissible in my view for him
to arrest the offender for the purposes of taking him to a police
station so that a
s 56
notice can be issued. The arrest in such a
case still has the purpose of bringing the offender to justice.
Section 56
itself contemplates that the recipient of the notice might
be in custody, because subsection (2) provides that if the accused is
in custody the effect of the written notice shall be that he is
released forthwith from custody. In the case of minor offences
where
a written notice in terms of
s 56
suffices, it will ordinarily be an
abuse of power (as paragraph [44] of Sekhoto indicates) to arrest the
suspect, because ordinarily
the peace officer would be able to issue
to the suspect, on the spot, a
s 56
notice. Here, however, George and
his colleagues did not have a fine book from which they could issue a
s 56
notice. In those unusual circumstances, the arresting of the
Respondent for the limited purposes of keeping him in custody until
the notice could be issued was not in my view unlawful.
[27] On
the version of George, there can be little doubt that he exercised
his power of arrest for the sole purpose of bringing
the Respondent
to justice in taking him to the police station whilst he was under
arrest. It is common cause that the Respondent
was released after the
written notice was handed to him. In my view, this clearly
demonstrates that the conduct of George in arresting
the Respondent
was bona fide to make sure that the Respondent either paid the fine
or appeared in court. Moreover, the Respondent
failed to comply with
an instruction or direction given to him by the police officials,
which objectively viewed, was not unreasonable,
irrational or
unlawful.
[28]
During argument, it appeared that the Respondent wanted to rely on
the exercise of an improper discretion that perhaps should
have been
pleaded. In Sekhoto supra at para [49] the Court held that “The
general rule is also that a party who attacks the
exercise of
discretion, where the jurisdictional facts are present, bears the
onus of proof. This is the position whether or not
the right to
freedom is compromised.”
[29] For
the reasons already advanced, it is in my view unnecessary to discuss
whether the Respondent properly pleaded that the
arresting officers
exercised their discretion improperly in the present instance. The
appeal in my view must succeed as the objective
evidence supports the
conclusion that the arresting officers were not mala fide,
unreasonable and irrational in exercising their
discretion to arrest
the Respondent.
[30]
During oral argument Mr O’Brien submitted that even if the
police officials had not been entitled to arrest the Respondent
for
the purpose of taking him to the police station to issue him a fine,
they had been entitled in terms of
s 3J
of the
National Road Traffic
Act to
instruct him to follow them to the police station and that his
failure to comply with the instruction was in terms of
s 3J
itself an
offence for which they could arrest him. Both counsel submitted a
supplementary note on this aspect. The Respondent did
not plead
reliance on
s 3J.
In view of my conclusions on the case as pleaded,
it is unnecessary to consider the
s 3J
point.
[31] The
only remaining issue is costs. It appears the appeal was originally
set down for hearing on 30 August 2013. The Respondent
adopted the
view that it should not be saddled with a costs order for that day as
it was the Appellant’s responsibility to
prosecute the appeal.
According to the Appellant both parties were ready to proceed with
the appeal on the allocated date only
to learn on the day in question
that the appeals clerk failed timeously to submit the file to the
Judge-President to allocate the
matter.
[32] In
this division, we as Judges are acutely aware of unnecessary delays
in the finalisation of matters. It is for that very
reason that the
Judge-President and Deputy Judge- President, in conjunction with all
Judges, formulated and spearheaded a very
successful case flow
management system in this Division. The non-allocation of this matter
on the previous date can therefore not
be blamed on the non -
availability of Judges. For this reason it would also be unjust and
inequitable to blame the Appellant for
an administrative blunder by
the appeal clerk. In my view the most appropriate order would be that
each party pay its own costs
in respect of the wasted costs
occasioned by the postponement.
[32] In
the result, the following order is made:-
1. The
Appeal is upheld with costs, except for the wasted costs occasioned
by the postponement on 30 August 2013, where each party
is ordered to
pay its own costs.
2. The
order of the court a quo is set aside and replaced by the following
order:
“The
Plaintiff’s claim is dismissed with costs”
LE
GRANGE, J
I
agree.
ROGERS,
J