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[2006] ZAGPHC 33
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Charles v Minister of Safety and Security (17599/2001) [2006] ZAGPHC 33; 2007 (2) SACR 137 (W) (21 April 2006)
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(WITWATERSRAND LOCAL DIVISION)
CASE NO: 17599/2001
In the matter between: CHARLES: RAY JOHN Plaintiff and THE MINISTER OF SAFETY AND SECURITY Defendant GOLDBLATT J:
The plaintiff claims damages from the defendant on the basis that he was “wrongfully, unlawfully and intentionally without reasonable
cause arrested … and detained” on 12 January 2001 until 15 January 2001 by certain police officers acting within the course and scope of their employment by the
defendant.
The defendant’s defence to these allegations is contained in paragraph 3 of his plea which reads as follows: “3.1 On the 12 June 2001 at about 0:00 am, Mr Mark Biggan laid a complaint of theft of his fire-arm as per Cas 1776/2000: Booysens. 3.2 On the same day, at about 16:00, Mr Biggan approached members of the South African Police at Booysens SAPS and informed them that he knows who stole his fire-arm. 3.3 Members of the SAPS then accompanied Mr Biggan to No. 33A Ferreira Street, Turfontein, who then pointed out the Plaintiff as the person who stole his fire-arm. 3.4 Members of the SAPS then arrested the Plaintiff at 16:50 in terms of Sec 40(1)(b) of Act 51 of 1977 in that the Plaintiff was reasonably suspected of committing the offence of theft of a fire- arm. 3.5 The Plaintiff was detained at Booysens SAPS from the 12 January 2001 at 18:00 till the 13 January 2001 at 15:45 when he was then transferred to Sophiatown SAPS. 3.6 The Plaintiff was detained at Sophiatown SAPS from the 13 January 2001 at 16:25 till the 15 January 2001 when he was taken to Johannesburg Magistrate Court. 3.7 The Plaintiff was released on the 15 January 2001 at 11:00 am, after the charges were withdrawn against the Plaintiff, as the State Prosecutor referred the Case for further investigation.” The plaintiff gave evidence that on the 12th of January 2001 two policemen came to his home and asked him if he possessed a fire-arm. He told them that he did not and they then asked him to accompany them to the Booysens police station to make a statement. He agreed to accompany them and at the police station he was put in a cell after his fingerprints were taken. He further said that he was not informed of his rights or why he was being kept in custody. This happened on a Friday afternoon and to Saturday morning he was taken to Sophiatown police station and was kept there until Monday morning. On Monday morning he was taken to the Johannesburg Magistrate’s Court and kept in the cells at the court for a few hours and then released. He never appeared in court. The plaintiff under cross-examination conceded that a certain Mr Biggar was with the police when they came to his home. The plaintiff’s evidence about the incident at his home was confirmed by Mr Hood, a friend of the plaintiff’s who was present when the police arrived. The defendant called four witnesses: Mr Biggar, Mr Donaraj, Inspector Baartman and Sergeant Hleza. Mr Biggar gave evidence that whilst he lived at 33 Ferreira Street, Turfontein, where the plaintiff also lived, his fire-arm was stolen and he reported the theft to the police. He had no idea who had stolen the fire-arm. In January 2001 Mr Donaraj, a person known to him and to the plaintiff, told him that the plaintiff had told him that he had stolen the fire-arm. After getting this information Mr Biggar went to the plaintiff’s home to check if the plaintiff was still there. At this time Mr Biggar no longer resided in the same property as the plaintiff. When he saw that the plaintiff was still at the house he went to the Booysens police station and told a policeman that he knew where the suspect who had stolen his fire-arm was to be found. This policeman then sent two other police officers with Mr Biggar to arrest the plaintiff. On the way to the house they passed a shop where Mr Donaraj worked and the policeman spoke to Mr Doneraj and asked him to accompany them but Mr Doneraj could not do so because he was alone in the shop. Mr Donaraj’s evidence was to the effect that round about Easter 2000 the plaintiff got a lift with him in his bakkie after emerging from the house at 33 Ferreira Street Turfontein and told him that he had stolen a fire-arm. He also saw that the plaintiff had something in his possession. Many months later he told Mr Biggar that the plaintiff had stolen his fire-arm. Thereafter Mr Biggar and the police came to his place of work and asked him to accompany them to point out the plaintiff. He told them that he could not leave the shop but that Mr Biggar knew the plaintiff. He also told them that the plaintiff had jumped into the back of his bakkie with the gun. Inspector Baartman gave evidence that he was the person who opened the original docket and that the docket had been closed as unsolved in August 2000 and filed away in the police filing office. However the particulars of the fire-arm had been placed on the police computer and he later ascertained that it had been found in Wenen in July 2000 though the complainant had not been advised of this by January 2001. At the time the complainant came to the police station in January 2001 the docket was not available to the police in the office and a temporary docket was opened. Sergeant Hleza stated that on 12 January 2001 he was on duty at Booysens police station as a driver of a patrol vehicle. He was instructed by his superior a certain inspector Oosthuizen who was in charge of the office to accompany Mr Biggar to a house where a suspect was to be found. He and Mr Biggar were accompanied by sergeant Mohlapi, who had since died. On the way to the house Mr Biggar stopped them, and he, Mr Biggar and sergeant Mohlapi went into a shop. When they returned sergeant Mohlapi told him that the person inside had seen the plaintiff with the fire-arm. They then went to the house where they found the plaintiff who after being asked about the fire-arm denied any knowledge of it. They then searched the premises but found nothing. Sergeant Mohlapi then told the plaintiff he was being arrested for the theft of the fire-arm and he was then taken to the Booysens police station and placed in the cells. Sergeant Hleza conceded in cross-examination that – (a) the plaintiff was co-operative; (b) he, sergeant Hleza was not under the impression that the plaintiff was a danger to the public; (c ) he, sergeant Hleza, had no reason to believe that the plaintiff would not appear in court if warned to do so. Sergeant Hleza further said that the plaintiff was informed of his rights in writing at the police station and that it was not true as stated by the plaintiff that he was not informed of his rights and forced to sign a document that was placed before him. It was not disputed that none of the policemen knew either the plaintiff or Mr Biggar prior to this incident or that they had any reason to act either maliciously towards the plaintiff or to act maliciously for the benefit of Mr Biggar. Nor was it suggested that Mr Biggar had any reason to prefer a false charge against the plaintiff. The defendant submitted that on the evidence before the court it had been proved that the arrest was lawful in that it was made in compliance with Sec 40(1)(b) of the Criminal Procedure Act 51 of 1997 which reads:
“A peace officer may without warrant arrest any person –
(a)……..
(b) whom he reasonably suspects of having committed an offence
referred to in Schedule 1, other than the offence of escaping from
lawful custody;”
(c) ……
(d) …… The plaintiff submitted that mere compliance with Section 40 of the Criminal Procedure Act did not render an arrest lawful and that more care and diligence was required of the arresting officer. In this regard counsel referred me to an unreported judgment of Bertelsmann J in the matter of A. Louw and Another v Minister of Safety and Security and Others (Case No.8835/03 in the Transvaal Provincial Division). The learned judge at page 11 line 9 to page 17 line 6 said:
“An arrest is a drastic interference with the rights of the individual to freedom of movement and to dignity. In the recent
past several statements by our courts and academic commentators have underlined that an arrest should only be the last resort as
a means of producing an accused person or a suspect in court: Minister of Correctional Services v Thabane, 2001 (1) SA 370(e) at 371(f):
“The right to personal liberty is so fundamental that the lawfulness of a person’s detention must be objectively justifiable,
regardless whether he was aware of the unlawfulness of the detention.”
If an accused or a suspect does not represent a danger to society, will in all probability stand this trial and will not abscond,
will not harm himself and is not in danger of being harmed by others, and my be able to be keen to disprove the allegations against
him of her, an arrest will ordinarily not be an appropriate way of ensuring the accused’s presence; see S v Van Heerden en Ander, 2002 (1) SACR 409 (T). In Ralekwa v Minister of Safety and Security, 2004 (1) SACR 131 (T), my sister DE VOS J, dealing with a similar issue, underlined the following:
“It is trite law that an arrest is prima facie wrongful and unlawful. For the defendant to prove that the arrest was lawful.”
She comments upon the pre-constitutional approach by our courts and our law enforcement authorities as reflected by SCHREINER JA, in Tsose v Minister of Justice and Others, 1951 (3) SA 10 in the Appellate Division at 17G to H:
“An arrest is, of course, in general a harsher method of initiating a prosecution, than citation by way of summons. But if the circumstances exist which make it lawful under a statutory provision to arrest the person as a means of bringing him to court,
such an arrest is not unlawful even if it was made because the arrestor believes that the arrest will be more harassing than summons.
For just as the best motive will not cure an otherwise illegal arrest, so the worst motive will not render an otherwise legal arrest
illegal… What I have said must not be understood as conveying approval of the use of arrest where there is no urgency, and
the person to be charged has a fixed and known address:
In such cases it is generally desirable than a summons should be used. But there is no rule of laws that requires the milder method of bringing a person into court to be used whenever it will be equally effective.” This passage is commented upon by my sister DE VOS J as follows:
“The question is whether, in view of the fact that we now have a Constitution, that restricts the exercise of public powers
through a justiciable Bill of Rights, the last statement of the quotation can be correct. There can be no doubt that an examination into the lawfulness of an arrest
against the backdrop of a statement that there is no rule of law requiring the milder method of bringing a person into court, will
be different from an enquiry which starts off on the premise that the right of an individual to personal freedom is a right, which
should be jealously guarded. I am of the view that demands of the Constitutional state must be taken into account when applying the
general test in such cases as these.”
In the factual context of that case, DE VOS J was required no more than to state this as a general principle. I am of the view that
the time has arrived to state as a matter of law that, even if a crime listed in Schedule 1 of Act 51 of 1977 has allegedly been committed, and even if the arresting police officers believe on reasonable
grounds that such a crime has indeed been committed, this in itself does not justify an arrest forthwith.
An arrest, being as drastic an invasion of personal liberty as it is, must still be justifiable according to the demands of the Bill of Rights. Nowhere has the need for justification of government action or administrative action been better described as in the of quoted article by the late Etienne Murenik “A Bridge to where?, introducing the interim Bill of Rights”. In the South African Journal on human Rights, Volume 10, 1994, 31. On page 32 the following is said:
“What the bridge is from, is a culture of authority. Legally the apartheid order rested on the doctrine of Parliamentary Sovereignty.
Universally, that doctrine teaches that what Parliament says is law, without the need to offer justification to the courts. In South Africa, since Parliament was elected only by a minority, the doctrine taught also that what Parliament said was law, without a need to justify even to those governed
by the laws. The effect of these teachings, at the apogee of apartheid, was to foster an ethic of obedience. The leadership of the ruling party commanded Parliament, Parliament commanded
its bureaucracy, the bureaucrats commanded the people. … If the new Constitution is a bridge away from a culture of authority,
it is clear what it must be a bridge to. It must lead to a culture of justification – a culture in which every exercise of
power is expected to be justified; in which the leadership given by the government rests on the cogency of the case offered in defence
of its decisions, not the fear inspired by the force at its command. The news order must be a community built on persuasion, not
coercion. If the new Constitution is to be a bridge in this direction, it is clear the Bill of Rights must be its chief strut. A Bill of Rights is a compendium of values empowering citizens affected by laws or decisions to demand justification”.
A very instructive article on the exercise of the power to arrest by Clive Plasket, under the heading “Controlling the discretion
to arrest without warrant through the Constitution” appears in the Suid- Afrikaanse Tydskrif vir Strafregspleging (11) 1998 on page 173. On page 194 the learned author says:
“The fundamental rights to freedom and to justifiable administrative action have, by rendering the offending part of Tsose’s
case redundant, placed the discretion to arrest on the same footing as the exercise of any other discretionary power. In the context of the high premium placed by the Constitution on the rights to human dignity and to freedom, that is important:
The courts are now provided with the means to protect these rights effectively (having failed to develop meaningful safeguards themselves), thus ensuring that
the drastic power of arrest without warrant, is controlled by the full spectrum of the principles of legality, procedural propriety
and rationality. This is not as radical a departure as some may imagine. After all, the idea of justifiability, principally articulated through a duty to consider less drastic alternatives, is
part of the police standing orders, which bind every police official in the exercise of this/her duties and functions. Despite this,
there may be those who perhaps in claiming to champion the war against crime, appear to believe that the police should be freed of
legal constraints. No one would suggest that the level of crime in our country is not an extremely serious problem. It is obvious
that decisive steps have to be taken to address the problem. On the legal level the answer lies in convicting and sentencing criminals in fair trials. For the police that means improving their capacity to detect crime and investigate offences. It goes without saying
that this should be done within the framework of the Constitution … The power to arrest plays a minor role in the endeavour
to combat crime: it is merely a means, and only one of a number of means, to initiate the process of prosecution. An increase in
the number of arrests may not be an indication that the war against crime is being won. T may instead be an indication that our Constitutional
Rights and freedoms are being devalued.”
What these statements mean is that the police are obliged to consider, in each case when a charge has been laid for which a suspect
might be arrested, whether there are no less invasive options to bring the suspect before the court than an immediate detention of
the person concerned. If there is no reasonable apprehension that the suspect will abscond, or fail to appear in court if a warrant is first obtained for his/her arrest, or a notice or summons to appear
in court is obtained, then it is constitutionally untenable to exercise the power to arrest.
Before an arrest can lawfully exercised, the reasonable suspicion that a Schedule 1 crime has been committed, must be considered by a reasonable investigating office, and it must be considered whether the suspect will attend the court hearing if summonsed or warned. Only if there are reasonable grounds to suspect that the suspect will abscond if an application for a warrant is first made, may the power contained in section 40 of Act 57 of 1977 be exercised.
I do not believe that this places an undue burden on the police. It requires no more than an honest exercise of their duties. If they
bona fide fear that a suspect will evade justice, then an arrest is obviously the correct option. But by the same token, this test makes an
arrest ultra vires when exercised against a suspect under circumstances where the suspect is perfectly willing to come to court on warning, on notice
or summons.”
I do not agree with the conclusion reached by Bertelsmann J despite his full and careful reasons therefore and am of the view that
it is clearly wrong.
In my view the final sentence of the quotation from Schreiner AJ Tsose’s case (supra) quoted by Bertelsmann J correctly sets out the existing law. The learned judge of appeal said – “But there is no rule of law that requires the milder method of bringing a person into court to be used whenever it will be equally effective”. The Legislature having granted a peace officer the right to make an arrest in the circumstances set out in section 40 has created a situation where due compliance with such section by a peace officer is lawful and affords such peace officer protection against an action for unlawful arrest. In my view the court has no right to impose further conditions on such persons. To do so would open a Pandora’s box where the courts would be called upon in cases of this type to have to enquire into what is reasonable in a variety of circumstances and further where peace officers would be called upon to make value judgments every time they affect an arrest in terms of section 40. These judgments which they would have to make would later have to be considered and tested by judicial officers attempting to place themselves in the shoes of the arresting officer. While section 40 exists in its present form it offers protection to those who legitimately rely upon it. Obviously the position will be different if the action of the policeman is mala fide or an abuse of the right given to him but I need not deal with the possible exceptions as they do not arise in the present case (see Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818 G to 819 B). In the present case the police having been informed by the complainant that the plaintiff had admitted to Mr Donaraj that he had stolen the fire-arm and the fact that Mr Donaraj confirmed this constituted, in my view, sufficient grounds to reasonably suspect the plaintiff of having stolen the fire-arm. The police did not have to believe that the plaintiff stole the fire-arm or to be convinced that he had done so had merely had to “reasonably suspect” that he had done so. I accordingly make the following order: The action is dismissed with costs. ________________________
LI GOLDBLATT
JUDGE OF THE HIGH COURT Date of Judgment: 21st April 2006 Counsel appearing for plaintiff: Adv JA du Plessis Instructed by: Jacobs Attorneys Counsel appearing for defendant: Adv P Khoza Instructed by: The State Attorney |