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IN THE NORTH WEST HIGH COURT

MAFIKENG

Case Number: 1661/2009

In the matter between:

EMMANUEL TLHAGANYANE ..............................................................Plaintiff

and

MINISTER OF SAFETY AND SECURITY ........................................Defendant

_______________________________________________________________

JUDGMENT

_______________________________________________________________

LANDMAN J:

Introduction

[1] Emmanuel Tlhaganyane, the plaintiff, claims R150 000 damages for his alleged unlawful arrest and detention by the South African Police for whose actions the Minister of safety and Security, the defendant, is alleged to be vicariously liable.

[2] The plaintiff’s evidence is that on 24 March 2008 he was driving a double cab in the company of several of his subordinates on their way to the London Mine in Limpopo. He was driving from Mafikeng and had not reached Lichtenburg when a white vehicle pulled alongside him and tried to stop him. He stopped but as the person was not wearing a uniform he thought better of it and drove to Lichtenburg followed by the white vehicle. There he paused a while to see what would happen. Nothing happened and he carried on his journey taking the Lichtenburg-Koster Road. Just before he entered Koster he was stopped by members of the SAPS and instructed to drive to the Koster Police Station.

[3] He and his passengers waited there some time until he was called into the charge office. The plaintiff was upset about being stopped and having had to wait as he would be late for work. After the plaintiff entered the charge the provincial traffic inspectors who had arrived from Lichtenburg office swore at him and called him a monkey which was degrading. He was arrested by a member of the South African Police without a warrant, not told why he was being arrested, not explained his rights and detained in the police cells until the next morning when the Koster Police transferred him, in the back of a police van, to the Lichtenburg Police Station. At Lichtenburg Police Station he was told he was being charged with reckless or negligent driving and police bail was fixed. He was returned to the Koster Police Station and released.

[4] The plaintiff appeared in the Lichtenburg Magistrate’s Court and pleaded not guilty to a charge of negligent driving. He was discharged in terms of section 174 of the Criminal Procedure Act 51 of 1977 (the CPA) after the State closed its case.

The plea and issues

[5] The defendant, admits the detention (the SAPS detained the plaintiff from 18:00 until 13:00 the next day) but denies that the plaintiff was arrested by a member of the SAPS and avers that the plaintiff was arrested by Inspector Mosiane, who is a Provincial Traffic Officer, and that the detention was lawful. It is admitted that the plaintiff was arrested without a warrant.

[6] The defendant expressly denies that the police at the Koster Police Station assisted Mosiane in making the arrest. This appears in an unsigned pre-trial minute of a pre-trial conference directed by the Judge President. The conference was to be held in my chamber but as I was involved in court that day, I directed the legal representatives to hold it on their own and file a minute. No objection was taken to the minute. The minute therefore binds the parties. See, Shepherd (Edms) Bpk v Santam Versekeringsmaatskappy Bpk 1985 (1) SA 399 (A) 415B-D and Chemfos Ltd v Plaasfosfaat (Pty) Ltd 1985 (3) SA 106 (A) 114I-115B.

[7] Both the plaintiff and Mosiane testified that a member of the SAPS performed the physical arrest. Makhubela, Mosiane’s superior, however, testified that the plaintiff was arrested by Mosiane without the assistance of police. The plaintiff says that the SAPS officer acted on his own initiative and was the arrestor. Mosiane testified that the SAPS warrant officer acted at his instance and he was the arrestor.

[8] It may seem that initially the plaintiff shared the view of Mosiane. The initial letter of demand sent to the defendant averred that the plaintiff was arrested by Mosiane. The attorney responsible sought to explain that this was a mistake and how it came about.

Onus

[9] The onus rests upon the defendant to show that the police did not arrest the plaintiff or that the arrest was lawful and that the detention of the plaintiff was lawful. See Rudolph and others v Minister of Safety and Security and Another [2009] 3 All SA 323 (SCA) at para 14 and Minister of Justice v Ndala 1956 (2) SA 777 (T).

The defendant’s evidence

[10] Mosiane made a statement to the police at the Koster Police Station. In his statement he says he was on duty in uniform and driving to Lichtenburg from Mafikeng when the accused overtook vehicles on a barrier line in the face of oncoming traffic. He followed him and stopped him but the plaintiff then drove away. He used his loudhailer to request the plaintiff to stop but plaintiff did not stop. He continued to follow him. He was driving an unmarked vehicle fitted with a detachable blue light. He does not say he asked the plaintiff for his driver’s license at Koster Police Station. He asserts that no one has the right to drive recklessly or to disobey an instruction by a traffic officer. He does not mention negligent driving.

[11] In the course of the criminal trial held in Lichtenburg on 7 November 2008 Mosiane gave evidence that he was on his way to take up his duties. The plaintiff drove on the wrong side of a barrier line. There were no approaching vehicles. He tried to stop the accused. He arranged for the accused to be stopped in Koster. At the Koster Police Station he asked plaintiff for his driver’s license. The plaintiff refused to hand it over. He then decided to arrest the plaintiff for crossing a barrier line and he personally informed the plaintiff of this.

[12] In the trial before me Mosiane said that he was driving from Mafikeng to Lichtenburg on the day in question. He was not yet on duty. He was driving an unmarked white Corsa which was fitted with a detachable blue light and had a public address system. He said he was dressed that day as he was dressed in court ie wearing a jacket and epaulettes but later said he was wearing a shirt with epaulettes. He was not sure if it was a long or short sleeve shirt. He said nothing about wearing a reflective vest. He might have worn a jersey.

[13] The plaintiff’s vehicle drove on the wrong side of a barrier line. Mosiane put on his blue light and chased after the double cab. He motioned to the driver of the double cab to pull over and sued his public address system to no avail. He made arrangements to have the double cab stopped at Koster. He notified his supervisor and followed the double cab to Lichtenburg.

[14] He arrived at the Lichtenburg Traffic Office. A while later he was advised by the Provincial Traffic Inspectors at Koster that they had stopped the driver of the double cab and he, Makhubela and another drove to the Koster Police Station.

[15] He wanted to charge the plaintiff with disobeying a traffic officer and reckless or negligent driving. They met the plaintiff in the charge office. Neither he nor his companions swore at nor insulted the plaintiff. He went to the plaintiff to arrest him but as plaintiff was aggressive he could not do so.

So he asked a warrant officer of the SAPS who was present to assist him the arrest of the plaintiff. He said the plaintiff was to be arrested for failing to obey a traffic officer and for reckless or negligent driving. The warrant officer arrested the plaintiff and took him to the cells where he was detained. He was present in the charge office when the warrant officer read the plaintiff his rights. He did not read the plaintiff his rights. The plaintiff was arrested before Mosiane completed his statement.

[16] Mosiane explained that as a peace officer he could arrest the plaintiff. At one stage he said he does not have the right to arrest the plaintiff for disobeying a traffic officer. It was not his function to decide on bail. When pressed on why the warrant officer arrested the plaintiff he said the police knew somebody must be arrested as his colleagues phoned them. He does not know the name of the warrant officer who arrested the plaintiff for him.

He said the plaintiff overtook him in the face of oncoming traffic and he had to drive with his wheels off the road. I may observe that this answer was not preceded by any evidence that the plaintiff had overtaken Mosiane save at the barrier line.

[17] Makubela testified that he had previously been Masiane’s supervisor at the Lichtenburg Traffic Office. On 24 March 2008 Mosiane phoned him to say he would be late and that a person just rode away when he tried to stop him. Later he saw Mosiane arrive at the office in his subsidy vehicle with its blue light on. Mosiane was wearing a reflective vest under his epaulettes. He travelled to the Koster Police Station with Mosiane and another inspector.

[18] He said the Provincial Traffic Officers in Koster had stopped and arrested the plaintiff. But when asked whether the plaintiff was arrested a second time by the police, he said the traffic officer at Koster had only stopped the plaintiff. At the Koster Police Station Mosiane arrested the plaintiff by touching him on his shoulder and by reading him his rights. He demonstrated how this was done. The police did not arrest the plaintiff. He was standing 1.5 metres away and saw and heard this. None of the traffic inspector made derogatory remarks about the plaintiff.

[19] No policemen testified and no warning statement by the Koster Police Statement was handed in.

Powers of arrest

[20] The first inquiry is whether Mosiane was a peace officer? A “peace officer” is defined in section 1 of the CPA as follows:

“peace officer includes any magistrate, justice, police official, correctional official as defined in section 1 of the Correctional Services Act, 1959 (Act 8 of 1959), and, in relation to any area, offence, class of offence or power referred to in a notice issued under section 334 (1), any person who is a peace officer under that section;”

[21] Section 334(1) of the CPA permits the Minister of justice to declare certain persons peace officers for specific purposes. The section reads:

(1) (a) The Minister may by notice in the Gazette declare that any person who, by virtue of his office, falls within any category defined in the notice, shall, within an area specified in the notice, be a peace officer for the purpose of exercising, with reference to any provision of this Act or any offence or any class of offences likewise specified, the powers defined in the notice.

(b) The powers referred to in paragraph (a) may include any power which is not conferred upon a peace officer by this Act.”

[22] The Minister has, in terms of section 334(1)(a) of the CPA, declared Provincial Traffic Officers to be peace officers. See Part 4 of Column 1 of the schedule in GNR 1396 of 22 July 1977: Regulations under S 334 as amended. As Provincial Traffic Inspector, Mosiane is a peace officer in terms of section 40 of the CPA. His area of jurisdiction is confined to the North West Province.

[23] As a peace officer Mosiane was authorised by section 40 of the CPA to arrest any person in terms of this section without an arrest warrant “who commits or attempts to commit any offence in his presence”. See subsection (1)(a).

[24] If the circumstances as provided in section 40 of the CPA exist, an arrest may be made, if they do not exist, the peace officer has no right to embark upon arrest, good faith or a reasonable mistake does not assist the peace officer (see Hiemstra’s Criminal Procedure, at page 5-6).

[25] The current state of the law regarding arrest without a warrant has been summarised in Minister of Safety and Security v Sekhoto and Another [2011] 2 All SA 157 (SCA) and Hiemstra’s Criminal Procedure at page 5-8:

1. the jurisdictional prerequisites for section 40(1) must be present;

2. the arrester must be aware that he or she has a discretion to arrest;

3. the arrester must exercise that discretion with reference to the facts and the Bill of Rights; and

4. there is no jurisdictional requirement that the arresting officer should consider using a less drastic measure than arrest to bring the suspect before court.

[26] Once a jurisdictional fact for an arrest is present a discretion whether or not to arrest arises. This was made clear in Minister of Safety and Security v Sekhoto and Another. Harms DP makes the following remarks at paragraph 28:

“Once the jurisdictional facts for an arrest, whether in terms of any paragraph of section 40(1) or in terms of section 43 are present, a discretion arises. The question whether there are any constraints on the exercise of discretionary powers is essentially a matter of construction of the empowering statute in a manner that is consistent with the Constitution.  In other words, once the required jurisdictional facts are present, the discretion whether or not to arrest arises. The officer, it should be emphasised, is not obliged to effect an arrest. This was made clear by this court in relation to section 43 in Groenewald v Minister of Justice.”

[27] Regardless of the fact that the circumstance for the arrest exist, the arrest may still be unlawful if the arrest was not done for the purpose of bringing the offender to justice. See, Minister of Safety and Security v Sekhoto and Another at para 30.

[28] It is important that a peace officer exercises its discretion in line with the Bill of rights. At para 40 of the judgment in Minister of Safety and Security v Sekhoto and Another Harms DP makes the following point:

“This does not tell one what factors a peace officer must weigh up in exercising the discretion. An official who has discretionary powers must, as alluded to earlier, naturally exercise them within the limits of the authorising statute read in the light of the Bill of Rights. Where the statute is silent on how they are to be exercised that must necessarily be deduced by inference in accordance with the ordinary rules of construction, consonant with the Constitution, in the manner described by Langa CJ in Hyundai (supra).”

Manner of arrest

[29] Section 39 of the CPA deals with the manner and effect of arrest. It states:

‘(1) An arrest shall be effected with or without a warrant and, unless the person to be arrested submits to custody, by actually touching his body or, if the circumstances so require, by forcibly confining his body.

(2) The person effecting an arrest shall, at the time of effecting the arrest or immediately after effecting the arrest, inform the arrested person of the cause of the arrest or, in the case of an arrest effected by virtue of a warrant, upon demand of the person arrested hand him a copy of the warrant.

(3) The effect of an arrest shall be that the person arrested shall be in lawful custody and that he shall be detained in custody until he is lawfully discharged or released from custody.’

[30] There is no bar on an arrestor seeking assistance of other persons including members of the SAPS to assist him or her. Section 47 of the Criminal Procedure Act 51 of 1977 obliges male inhabitants who fall within a certain age group to assist a “police official” in making an arrest. It is a criminal offence for such a male person to refuse to assist a police official but it does not bar an arrestor from invoking assistance which could be refused. Mosiane was not only a peace officer. The minister had also declared that provincial traffic officers would be regarded as police officer for the purposes of the CPA with certain exception, none of which are applicable here.

The lawfulness of the arrest

[31] It is common cause that the arrest of the plaintiff was made without a warrant. There are four or more scenarios which may have taken place. They are:

(a) Mosiane arrested the plaintiff on his own without assistance.

(b) Mosiane arrested the plaintiff with the assistance of a warrant officer of the SAPS.

(c) A warrant officer of the SAPS arrested the plaintiff on his own initiative.

(d) The warrant officer simply detained the plaintiff.

Arrest by Mosiane without assistance of SAPS

[32] The evidence of Makubela was unsatisfactory and where he contradicts the evidence of the plaintiff, I accept the plaintiff’s evidence. Mosiane evidence was also unsatisfactory but not to the same degree as that of Makubela who was at one time his superior. On this basis I find that Mosiane did not, on his own, arrest the plaintiff.

Arrest by Mosiane with assistance of SAPS

[33] The plaintiff might not have been in a position to know whether he was being arrested by Mosiane or the police as a result of a complaint or request by Mosiane. I must mention that the letter of demand sent by the plaintiff’s attorney of record tends to show that the plaintiff thought he was being arrested by Mosiane. I approach the arrest, for purposes of this part of the judgment, on the basis that an unnamed warrant officer assisted Mosiane to arrest of the plaintiff at the insistence of Mosiane.

[34] What did Mosiane say to the warrant officer to cause him to assist him? He says he told the warrant officer that the plaintiff refused to obey an instruction and that he drove recklessly. What he said may be incorporated or may not be incorporated in his statement because Mosiane says the statement was not completed before the arrest was made and that the statement may not record all that he said to the police officer who took his statement.

Commission of crime in presence of peace officer

[35] As a peace officer Mosiane could, on the facts of this case, only arrest the plaintiff if he committed a crime in Mosiane’s presence. The crime in question could conceivably be one or all the following:

• Driving across a barrier line

• Failing to obey a traffic officer

• Failing to hand over a driver’s license

• Reckless and negligent driving

In order to discover the crime which Mosiane say he relied upon it is useful to see what he said about the reason for the arrest at various times.

[36] Mosiane’s statement does not mention plaintiff’s failure to produce a valid driver’s license. Nor does it explicitly mention negligent driving. It does mention failure to obey an instruction to stop by a provincial traffic officer and overtaking on a barrier line in the face of oncoming traffic. But in his evidence in the Magistrate’s Court he said there were no oncoming vehicles. It is doubtful whether he observed any reckless driving by the plaintiff. His evidence before me to the effect that the plaintiff overtook him so that he had to drive with his vehicle’s wheels off the tarmac does not assist because he did not say that the plaintiff had overtaken him. His evidence was that he was following the plaintiff or driving alongside him; not that he was driving in front of the plaintiff.

[37] What remains is his evidence that the plaintiff overtook contrary to a barrier line but at a stage when there was no oncoming traffic. But in the light of all the inconsistencies in his evidence I cannot find that it has been proven that he witnessed the plaintiff crossing a barrier line.

[38] At the criminal trial the plaintiff was only charged with negligent driving but he was discharged at the end of the state’s case for lack of evidence.

[39] In the trial before me Mosiane testified that he wanted to charge the plaintiff with disobeying a traffic officer and reckless or negligent driving. Under cross examination he said that he does not have the right to arrest the plaintiff for disobeying an instruction by a traffic officer. Although he said he was on duty he was in fact on his way to report for duty. This is not material except as to credibility.

[40] The plaintiff would only commit a crime of disobeying a provincial traffic officer if the officer was in uniform. Mosiane testified that he was dressed that day as he was dressed in court i.e. wearing a brown jacket and epaulettes but later said he was wearing a shirt (brown) with epaulettes. He might have worn a jersey. But he said nothing about wearing a reflective vest. Makhubela is adamant that Mosiane was wearing a reflective vest when he arrived at the office immediately after the incident. The plaintiff says that Mosiane was not wearing a uniform. There is at the very least serious doubt about what Mosiane was wearing at the time of the incident and whether a motorist would have known that he or she was being given an order by a traffic Inspector.

[41] I find that the onus of proving that Mosiane had witnesses a crime committed by the plaintiff in his presence has not been acquitted.

Awareness of discretion to arrest and its exercise

[42] When Mosiane testified in the criminal trial, he said that when he was at the Koster Police Station, he asked the plaintiff to produce his license and he would have issued a ticket to the plaintiff. But the plaintiff refused to hand over his license and he then decided to arrest the accused for crossing the barrier line and he personally informed the accused of this. I have dealt with other aspects of this statement. It shows that reckless driving was not a concern nor was failing to obey a traffic officer’s instructions. It also shows the inconsistencies in his evidence and how the alleged crime mutated and escalated in seriousness in the course of time. But for present purposes it shows that Mosiane knew he had a discretion to exercise whether to arrest the plaintiff or not. It was evidence in the trial before me it may well be said that not only was he aware of his discretion but he exercised it in accordance with the Bill of Rights i.e. not arbitrarily but because of the facts including the refusal to produce the license.

[43] However, this was not the evidence in the trial before me. Leaving aside Makubela evidence which I have rejected, Mosiane wanted to arrest the plaintiff and paid no attention to the facts or the Bill of Rights. It seems that he was angered by the plaintiff’s lack of respect for him and his authority.

[44] The unsatisfactory evidence of Mosiane leads me to conclude that the defendant, who relies on this evidence, has not discharged the onus of proving that the arrest was lawful and thus that the detention was lawful. The defendant is responsible for that arrest as it occurred with the assistance of a warrant officer of the SAPS who was on duty in the charge office and acted in the course and scope of his authority. The defendant is liable for the wrongful detention of the plaintiff.

Arrest by police

[45] The case which the plaintiff was required to rebut, having regard to the pleadings and the answers to the pre-trial questions, is that he was not arrested by a member of the SAPS at Koster nor did any member of the Police assist the traffic inspector with plaintiff’s arrest. No attempt has been made to withdraw the answer to the question. But the defendant has led to evidence of Mosiane that he did not physically arrest the plaintiff. The physical act was performed by the police at his request.

[46] The plaintiff has testified that he was arrested by the Police and that his rights were not read to him. It is also evident that he was not advised by the Koster Police of his possible entitlement to bail. No affidavit, statement or entry by the warrant officer was discovered. There is no documentary proof that plaintiff’s rights were read to him nor is there any evidence that a warning statement was taken from him. Neither is there any documentary evidence that the plaintiff was informed of the reasons for his arrest or detention. The police officer who physically arrested the plaintiff, whether as agent of Mosiane or otherwise, was not called to testify.

[47] If the role of the warrant officer was merely to receive and detain the plaintiff, there is no evidence that this was his intention when he physically arrested the plaintiff. There is no written request to assist with the arrest of the plaintiff. Mosiane’s affidavit, which was completed after the physical arrest, does not state that the Koster Police were requested for assistance with the arrest.

[48] Mosiane may think that the warrant officer was assisting him to arrest the plaintiff but it does not exclude an inference that the warrant officer arrested the plaintiff on his own initiative for reasons which have not been disclosed.

[49] The warrant officer, on the evidence before me, would have had no right to arrest the plaintiff. The fact that the arrest took place in the charge office would prove that he was acting in the course and scope of his duties when he arrested the plaintiff.

[50] The defendant has not acquitted the onus of showing that the warrant officer did not arrest the plaintiff or that he lawfully arrested the plaintiff.

Detention

[51] An unlawful arrest means that the detention that followed will also be unlawful. See Bolekwa Nokeke v Minister of Safety and Security and Another (Case No: 1089/07, Eastern Cape Transkei judgment delivered on 9 May 2008) where Plaskett J said at paras 88 and 94:

“[88] Section 39(3) does not purport to render detentions that follow unlawful arrests valid. Instead, it operates from the pre-supposition that arrests will be valid. Understood in this way, it means that if a person is lawfully arrested, that person will then be in lawful custody until he or she is lawfully discharged or released. The converse holds true as well: if the arrest of a person is unlawful, his or her subsequent detention will also be unlawful.

. . . . .

[94] Instead, s 39(3) is a strong indication that the function of detaining in terms of s 50(1) is a mechanical one: the mere fact that a person is lawfully arrested means that his or her detention in terms of s 50(1) is lawful and that he or she ‘shall be detained in custody until he [or she] is lawfully discharged or released from custody’. The only jurisdictional fact for the exercise of this mechanical power is that the person to be detained has been arrested by someone with the ostensible authority to arrest in terms of the CPA (or perhaps other empowering legislation).”

[52] I should mention section 50(1)(a) and (b) which reads:

“(a) Any person who is arrested with or without warrant for allegedly committing an offence, or for any other reason, shall as soon as possible be brought to a police station or, in the case of an arrest by warrant, to any other place which is expressly mentioned in the warrant.

(b) A person who is in detention as contemplated in paragraph (a) shall, as soon as reasonably possible, be informed of his or her right to institute bail proceedings.”

[53] The plaintiff was not informed of his right to apply for bail while he was at the Koster Police Station. No evidence was led was to why the plaintiff was not informed by the Koster police about his right to institute bail proceedings. Prima facie it seems to have been reasonably possible to have done so that day and not to have left it to the following day to the Lichtenburg Police.

Quantum of damages

[54] The plaintiff is the son of a Methodist Minister. He himself had completed a theology diploma at the Rynfield Christian College and was a lay preacher. He had been involved in community affairs. He was married to a social worker and they had three children. Clearly he was deeply aggrieved by his arrest and detention.

[55] The plaintiff was deprived of his freedom for about 19 hours and deliberately inconvenienced. He was kept in the Koster Police Station cells. He was not informed of why he was detained. He was not read his rights. He was not informed of this right to bail. He was arrested in front of his workplace subordinates. He was a chief production planner at the mine reporting to the Mine Captain.

[56] I do not take into account the evidence that his arrest and detention may have led to his retrenchment nor that it may have caused his failure to be elected to a council. I come to this conclusion because the causal link is too tenuous. I also do not take into account any remarks made by the Provincial Traffic Officers prior to the arrest.

[57] I am of the view that compensation in the sum of R140 000 would be adequate and fair.

Costs

[58] I would award costs against the defendant on the basis that costs should follow the result. These costs are to include the costs are to be on the High Court scale as the question who arrested the plaintiff was complicated by the defendant’s contradictory stance about the involvement of a SAPS officer in the arrest. The costs are to include the costs of counsel’s attendance at the pre-trial conference.

Order

[59] The defendant is ordered:

1. To pay the amount of R140 000 to plaintiff as damages for his unlawful arrest and unlawful detention in.

2. To pay the costs of the action on the High Court scale and the costs are to include the costs of counsel’s attendance at the pre-trial conference.

A A LANDMAN

JUDGE OF THE HIGH COURT

APPEAREANCES:

date of hearing : 22 January 2013

date of judgment : 14 February 2013

counsel for plaintiff : adv zwiegelaar

counsel for defendant : adv more

attorneys for plaintiff : van rooyen tlhapi & wessels

attorneys for defendant : state attorney

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