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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

 

CASE NUMBER: 147/2018

Reportable: NO

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

In the matter between:-

 

MPOTSENG SAMUEL MPUTLE                                                 Plaintiff

 

and

 

MINISTER OF POLICE                                                                  Defendant

 

JUDGMENT

 

FMM SNYMAN J.

Introduction

[1]          This is a claim for damages against the defendant for unlawful arrest of the plaintiff on 5 September 2017 and subsequent detention at the Tlhabane Police Cells until 8 September 2017.

 

[2]          By agreement between the parties the case was presented as a stated case for adjudication pursuant to the provisions of Rule 33 of the Uniform Rules of Court. All the material facts in the matter are common cause and no evidence was lead.

 

[3]          The quantum and merits have been separated and the matter proceeded on the merits only. The onus rests on the defendant to prove that the arrest and subsequent detention was lawful (See Minister of Law and Order v Hurley 1986 (3) SA 568 (A) at 589 E-F).

 

[4]          The question before this Court is two-pronged:

 

4.1.       Whether the arrest of the plaintiff was lawful; and

 

4.2.       Whether the subsequent detention of the plaintiff was

 

[5]          The plaintiff was arrested in terms of section 40 of the Criminal Procedure Act 55 of 1977 (CPA), claiming that the arresting officer had a reasonable suspicion that the plaintiff has committed an offence under Schedule 1 of the CPA, namely theft.

 

[6]          On 11 March 2017 Ms Mbwabeni (the complainant) reported the canopy of her vehicle ("bakkie") stolen. This theft took place during the evening of 10 March 2017 and early hours of 1 1 March 2017. A criminal case and was registered under C[...] at the Tlhabane South African Police Service (SAPS) Station.

 

[7]          During the investigation of the theft, the forensic specialists of the SAPS uplifted fingerprints from the outside of the vehicle. It is common cause between the parties that these fingerprints were identified to be that of the plaintiff. The investigating officer confirmed with the complainant whether she is familiar with the plaintiff (thus whether she knows the plaintiff) and she confirmed that she is not familiar with him.

 

[8]          The content of the docket was admitted by agreement between the parties to supplement the common cause facts in the matter in addition to the facts in the stated case. This included documents reflecting several objective material facts which Adv (Mr) Mmolawa argued on behalf of the defendant that lead to the arresting officer having a reasonable suspicion that the theft of the canopy was committed by the plaintiff.

 

[9]          These objective material facts are the following:

 

9.1.       The plaintiff's fingerprints were found on the vehicle of the complainant;

 

9.2.       The plaintiff was not known to the complainant; and

 

9.3.       There were no other suspects

 

[10]       Also in support of the argument that the arresting member of the SAPS had no bad faith in arresting the plaintiff is the fact that the offence has been committed in March 2017 whilst the arrest was executed some six (6) months later, on 5 September 2017. The arrest was done only after the outcome of the fingerprint analysis was finalised.

 

[11]       It was further submitted by Mr Mmolawa that there is no indication of, and no inference can be made, from the facts of the matter that the arrest was executed irrationally, arbitrarily or with ulterior motives.

 

[12]       In the criminal matter the plaintiff was brought before Court and on the first appearance the plaintiff was granted bail and released on bail of R300.

 

[13]       Mr Mmolawa also submitted that the lawfulness of the arrest will have an impact on the lawfulness of the detention. The submission was that if the arrest was found to be unlawful, it follows that the detention would be unlawful as well.

 

[14]       Adv (Mr) du Plessis argued on behalf of the plaintiff that there was no evidence before the Court that the arresting officer exercised any discretion in effecting the arrest. This is submitted on the following bases:

 

14.1.    No alternative means were considered in bringing the plaintiff before Court;

 

14.2.    The "5^th jurisdictional fact" (as referred to in Louw v Minister of Safety and Security 2006 (2) SACR 178 (T)) should have been exercised, namely whether there is any alternative means to bring the accused before Court. This was not done;

 

14.3.    The likelihood of the plaintiff to interfere with the investigation was not considered as a factor prior to the arrest; and

 

14.4.    There was not a reasonable suspicion to be entertained by the arresting officer that the plaintiff committed the theft, in that:

14.4.1.            The SAPS linked the accused by his fingerprints, which in itself should not amount to a reasonable suspicion;

 

144.2. The arresting officer does not aver that he had access to the fingerprint analysis, and the outcome of the fingerprint analysis was not on the docket; and

 

144.3. There might have been a suspicion that the plaintiff committed the theft, but the suspicion was not reasonable as the arresting officer was only informed by SAPS members of the forensic unit that the fingerprints are those of the plaintiff. The argument by Mr du Plessis was that the arresting officer was premature in executing the arrest and that he should have waited to inspect the outcome of the fingerprint analysis personally.

 

[15] The unlawfulness of the arrest was further indicated, so the argument goes, in that:

 

15.1.    That the arresting officer was duty bound to inform the plaintiff that he had sight of the outcome of the fingerprints.

 

15.2.    In addition, the argument was that the discretion should have been exercised against effecting an arrest as the crime is for theft, which is not a violent crime and as such the plaintiff presented no danger to the community.

 

15.3.    Mr du Plessis also argued that it was not taken into account whether the plaintiff had a fixed address, which would have been a factor to consider against effecting arrest.

 

[16]       Mr du Plessis furthermore argues that the lawfulness of the arrest is affected by the failure of the arresting officer to inform the plaintiff of his rights, and the plaintiff was not given notice of his rights which would include his right to bail and appearance in Court. These rights have not been explained to the plaintiff. The docket, however, reflects that the plaintiff was informed of his rights after he was arrested. The Notice of Rights in terms of the Constitution Act 108 of 1996 (Section 35) were signed by the plaintiff, and as such this argument cannot be upheld.

 

[17]       It is argued on behalf of the plaintiff that the defendant failed to prove that the arrest was lawful, and that the Court should find in favour of the plaintiff that the arrest was unlawful.

 

The leqal position

[18] Section 40(1) of the CPA deals with the statutory requirements in relation to arrest without a warrant of arrest, and reads as follows:

 

"40 Arrest by peace officer without warrant

 

(1)       A peace officer may without warrant arrest any person-

 

(a)          who commits or attempts to commit any offence in his presence;

 

(b)          whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping.from lawful custody "(own emphasis)

 

[19]      Theft, being the offence that the plaintiff was arrested for, is an offence listed as follows in Schedule 1 to the CPA: "Theft, whether under the common law or a statutory provision.”

 

[20]         The argument on behalf of the plaintiff that theft is not a violent crime and arrest should therefore not have been affected, cannot be sustained as the legislature identified theft to be one of the offences of which a peace officer can lawfully effect an arrest without a warrant: whether under the common law or statutory provision.

 

[21]         In the matter of Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 818G-H, the jurisdictional facts for a successful defense to an arrest in terms of Section 40(1 )(b) of the CPA are that:

 

(i) the arrestor must be a peace officer;

 

(ii) the arrestor must entertain a suspicion;

 

(iii) the suspicion must be that the suspect (the arrestee) committed an offence referred to in Schedule 1; and

 

(iv) the suspicion must rest on reasonable grounds.

 

[22]         These are the statutory requirements for an officer of peace to lawfully arrest a suspect without a warrant of arrest. To establish whether the arrest was effected lawfully, this Court has to make a finding whether the facts indicated that the arresting officer (who is a peace officer) had a reasonable suspicion that theft was committed.

 

[23]         The plaintiff's case was that the arresting officer failed to have regard to the question whether there are any other means of ensuring the accused suspect's attendance at Court. This purported additional requirement has become known as the "fifth jurisdictional fact" after being so referred to by Bertelsmann J in the matter of Louw v Minister of Safety and Security 2006 (2) SACR 178 (T) at 186A 187E, where the learned judge said the following:

 

"There is a related provision concerning the right to arrest in s 9 of the Stock Theft Act but it will not be necessary to consider it separately (vide Minister of Law and Order v Hurley 1986 (3) SA 568 (A) at 589E-F). 'l am of the view that the time has arrived to state as a matter of law that, even if a crime which is listed in Schedule I of Act 51 of 1977 (sic — CPA) has allegedly been committed, and even if the arresting peace 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…[P]olice 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.”

(Own emphasis)

 

[24]         In the matter of Minister of Safety and Security v Sekhoto 2011 (5) SA 367 (SCA) the Supreme Court of Appeal found as follows:

 

“[21]       The four express jurisdictional facts for a defense based on section 40(1)(b) have been set out earlier but to repeat the salient wording 'a peace officer may without warrant arrest any person whom he reasonably suspects of having committed an offence referred to in Schedule 1'. Schedule 1 offences are serious offences.

 

[22]             With all due respect to the different high court judgments referred to, applying all the interpretational skills at my disposal and taking the words of Langa CJ in Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd [2000] ZACC 12; 2001 (1) SA 545, 2000 (10) BCLR 1079 (CC) seriously, I am unable to find anything in the provision which leads to the conclusion that there is somewhere in the words a hidden fifth jurisdictional fact. And because legislation overrides the common law, one cannot change the meaning of a statute by developing the common law. ' (own emphasis)

 

[25]         The SCA thus found that “…the approach in Louw conflated jurisdictional facts with discretion” and came to the conclusion that it is not a requirement to take into consideration whether there was any alternative means to secure the attendance of the arrested accused before Court.

 

[26]         This argument of the plaintiff is consequently doomed to fail.

 

[27]       In addition to the failure of the arresting officer to exercise its discretion against arrest on the basis of the "fifth jurisdictional fact”, Mr du Plessis argued that the arrest was unlawful as the plaintiff was not informed of his Constitutional rights to request bail. This argument is not in line with the facts before Court. The facts indicated that the plaintiff was arrested and brought before Court, where he applied for, and was granted, bail of R300. The plaintiff was consequently released on bail. This argument can also not be sustained.

 

[28] The arrest was executed after the arresting officer was informed of the outcome of the fingerprints. Mr du Plessis argued that the arresting officer acted outside the scope of reasonableness in the absence of having physically and personally observed the outcome of the fingerprint analysis. The arresting officer was informed of the outcome of the fingerprint analysis by another SAPS official who received the fingerprint analysis from the SAPS forensic laboratory.

 

[29]        I do not find any requirement that an arresting officer has to question and establish the outcome of the fingerprint analysis personally and observe it personally. Being informed of the outcome by another SAPS member who has had sight of the physical fingerprint analysis would support and suffice as a reasonable suspicion that the accused committed the offence. Similarly, this argument cannot be sustained.

 

Findinq

[30]          Having regard to the above, I find that the arresting officer did exercise his discretion in line with the statutory requirements of section 40(1 )(b) of the CPA.

 

[31]          Having found that the arrest was lawful, it follows that the subsequent detention of the plaintiff was lawful as well.

 

[32]        I find no reason to deviate from the accepted principle that the cost of suit should follow the outcome. The defendant is entitled to its costs in defending the matter.

 

Order

[33] In the premises I make the following order:

 

i)             The plaintiff's claim is dismissed.

 

ii)            The plaintiff is ordered to pay the costs of the defendant on a party and party scale.

 

FMM SNYMAN

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION MAHIKENG

APPEARANCES:

DATE OF HEARING:	19 MAY 2021
DATE OF JUDGMENT:	14 SEPTEMBER 2021
COUNSEL FOR PLAINTIFF:	ADV DU PLESSIS
COUNSEL FOR DEFENDANT:	ADV MMOLAWA
ATTORNEYS FOR PLAINTIFF:	LABUSCHAGNE ATTORNEYS 19 CONSTANTIA DRIVE RIVIERA PARK, MAHIKENG 2745
ATTORNEYS FOR DEFENDANT:	THE STATE ATTORNEYS 1ST FLOOR, MEGACITY MMABATHO

 

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