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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

Case No: 487/11

Date heard: 8/9/14

Date delivered: 2/10/14

Not reportable

In the matter between:

MINISTER OF SAFETY AND SECURITY                                                             1^st Applicant

MARK DUMISA MAGADLELA                                                                            2^nd Applicant

and

CHRISTIAAN BENJAMIN WEITZ                                                                          Respondent

JUDGMENT

PLASKET J

[1] This is an application for leave to appeal against a judgment in which I found that the defendants – the applicants in this matter – were liable to the plaintiff – the respondent in this matter – for whatever damages he may prove in due course arising from his unlawful arrest and detention. I shall, in what follows, refer to the plaintiff as Weitz and the fourth defendant (the second applicant in this application) as Magadlela, as I did in my judgment in the trial.

[2] In essence, I found that Magadlela, the arresting officer, had not applied his mind properly when he took the discretionary decision to arrest Weitz on the strength of a warrant because he had failed to take into account relevant considerations and because the decision was irrational. As I understand the grounds of appeal, it is not alleged that I erred in any way as far as factual findings were concerned, but that I erred in the application of the law to the facts.

[3] The grounds of appeal are directed, in the main, at my conclusions that Magadlela failed to take into account relevant considerations and took an irrational decision but two further grounds are raised as well. The first is my finding that although the regularity of Magadlela’s exercise of discretion was not pleaded as fully as one might have wished, that issue was fully canvassed in the trial and was the true issue to be decided. The second further point is that I erred in finding the defendants liable for the entire period of the Weitz’s detention from 09h55 on 30 June 2009 until 13h30 on 1 July 2009. It is argued that if I am correct on the merits and the procedural point, the defendants should only be liable for the plaintiff’s detention until 10h00 on 1 July 2009 because the period of detention from then until his release was the result of delays on the part of the public prosecutor.

[4] I shall deal with this point first. It was not pleaded and nor was it an issue in the trial that was canvassed in the evidence. The point concerns the question of legal causation. Once it was found by me that the defendants were liable to Weitz for his unlawful arrest and detention, their liability extended to all harm that was foreseeable, and hence not too remote. They must have foreseen the possibility of delays at court in Weitz’s case being called and in the administrative processes for his release. I am accordingly of the view that there are no reasonable prospects of another court arriving at a conclusion contrary to mine on this issue.

[5] I turn now to the question of whether the way in which Magadlela exercised his discretion to arrest was properly before me. In my judgment I said that the issue arose ‘somewhat obliquely from the pleadings’ but that it was accepted by the parties that it was ‘the true crux of the case’. I stated too that the issue was canvassed fully in the evidence.^[1]

[6] At at no stage was there any objection on the part of the defendants to the leading of evidence on this issue. On the contrary, Mr Zilwa who appeared for the defendants put to Weitz in cross-examination how Magadlela had gone about taking the decision to arrest him, Magadlela was led on this and he was cross-examined on it by Mr Mouton who appeared, together with Ms Bands, for Weitz. This was not surprising because the way in which Magadlela’s discretion was exercised was about the only issue that could be canvassed once the decision to issue the warrant of arrest was not being challenged.

[7] Mr Zilwa argued, as I understood him, that I erred in finding that the issue was pleaded ‘somewhat obliquely’ because it was not pleaded at all. I am not convinced he is correct in this respect but, in the light of the cases that I shall discuss below, it is of no moment whether it was pleaded imperfectly or not at all.  

[8] The cases do not draw a distinction between an issue being pleaded inadequately and not being pleaded at all. In Collen v Rietfontein Engineering Works,^[2] a case I cited in my judgment, the court decided the matter on the basis of a contract that was never pleaded, and contained different terms to the one that was, because all relevant material having been produced in evidence and placed before the court, it ‘would be idle for it not to determine the real issue which emerged during the course of the trial’.

[9] In Middleton v Carr,^[3] also a case cited in my judgment, Schreiner JA, where a party sought to rely on an unpleaded tacit contract, stated that ‘where there has been full investigation of a matter, that is, where there is no reasonable ground for thinking that further examination of the facts might lead to a different conclusion, the Court is entitled to, and generally should, treat the issue as if it had been expressly and timeously raised’.^[4]      

[10] I deal now with the issues relating to the finding that Magadlela failed to take into account relevant considerations when he decided to arrest Weitz. In my judgment, I said the following in this regard:^[5]

‘It appears from Magadlela’s evidence that he had very little information about Weitz. He knew he was a lieutenant-colonel and must have known that he had had a fairly long career in the SAPS. It is not clear whether Magadlela knew that he was the station commissioner of a police station that had, for the previous four years, been judged to be the best police station in the Eastern Cape. He did not know that Weitz’s wife was also a lieutenant-colonel in the SAPS, stationed in Aliwal North, that they owned fixed property there, had children who attended school in Aliwal North and that Weitz ran a brokerage in Aliwal North. All of these facts and many more, that he became aware of shortly after the arrest when a form entitled ‘Bail Information’ was provided to him, would have been relevant to the exercise of his discretion but were not considered by him. The failure to consider them and take them into account renders the exercise of his discretion to arrest Weitz irregular, with the result that the arrest was unlawful.’

I note that it is not argued that I erred in respect of the factors I identified as relevant to Magadlela’s exercise of discretion.  

[11] The exercise of the discretion to arrest, whether with or without warrant, involves a consideration of a range of issues – of relevant considerations, in public law parlance – precisely because it concerns the balancing of potentially conflicting interests: those that relate to the administration of justice, on the one hand, and those that relate to the rights to freedom and dignity of the individual, on the other. For this reason it was stated by the Privy Council in Hussien & others v Chong Fook Kam & another^[6] that the grant of a power to arrest on the basis of reasonable suspicion ‘does not mean that it is always or even ordinarily to be exercised’ and that, in the exercise of the discretion to arrest, ‘many factors have to be considered besides the strength of the case’. They are essentially the types of factors that are relevant to bail applications.

[12] The factors that are relevant to the exercise of the discretion to arrest were dealt with by Horn J in Olivier v Minister of Safety and Security & another,^[7] a case concerning an arrest without a warrant. After finding the arrest unlawful because the arresting policeman had not formed the necessary reasonable suspicion, Horn J proceeded to consider the reasonableness of the arrest and held that in order to determine whether an arrest was ‘unavoidable, justified or the only reasonable means to attain the objectives of the police investigation’ one had to consider such issues as whether the suspect was a flight risk, the permanence of his or her employment and residence, his or her cooperation with the police, his or her standing in the community or amongst his or her peers, the strength or weakness of the case and the interests of justice.^[8] Factors he considered to be relevant to the exercise of discretion in that case, which bore some similarities with this one, were that the plaintiff was a ‘highly ranked police officer with many years’ service’, he worked at the police station at which he was arrested and lived in the town in which it was situated, he lived with his wife and children, and the case against him was tenuous.^[9]

[13] It was clear from Magadlela’s evidence that he had very little information about the personal circumstances of Weitz. That is not surprising because, in the seven months in which he investigated a case against Weitz, he never once spoke to him or sought his version of events. If he had done so, he would have acquired the sort of information that was necessary in order to apply his mind properly.

[14] It was argued by Mr Zilwa that even if Magadlela had taken relevant considerations into account, he still would have arrested Weitz. While it is true that it is, generally speaking, for the decision-maker to decide how much weight to attach to each relevant factor, he or she still has to give them proper consideration: in Bangtoo Bros & others v National Transport Commission & others^[10] Henning J held that the tribunal concerned in that case was ‘essentially obliged to consider all relevant and material information placed before it’ and to ‘pay mere lip service to this obligation is not sufficient, just as it would be a dereliction of duty to hear representations which are pertinent, and then to ignore them’.

[15] The factors that should have been considered, but were not, were not make-weights. They were material. They are a range of factors that counter-balance the factors that Magadlela took into account in favour of arresting Weitz. In Ulde v Minister of Home Affairs & another,^[11] a case concerning the arrest of an illegal foreigner, Cachalia JA expressed the general principle that in cases involving the deprivation of liberty the empowered official concerned ‘must still construe the exercise of his discretion in favorem libertatis when deciding whether or not to arrest or detain a person’. This statement accords, in my view, with the general approach taken by the courts to arrests in terms of the Criminal Procedure Act 51 of 1977, such as the one in this case.^[12] The fact that the considerations that I set out in my judgment were not taken into account constitutes the irregularity in the form of a failure to properly apply the mind. 

[16] Mr Zilwa’s submission seems to be that the irregularity committed by Magadlela was inconsequential in the sense that he would have exercised his discretion in precisely the same way had he taken the ignored factors into account. I have two difficulties with this submission. First, as I have said, the irregularity is not inconsequential but is material; and it is hard to imagine that the same result would inevitably have followed had Magadlela applied his mind properly and taken into account the factors he ignored. He would have had to take into account a range of factors that all pointed away from the need to arrest Weitz – and to have done so, as stated in Ulde, with a view to favouring the liberty of the individual.

[17] Secondly, this is not the correct legal approach. In Allpay Consolidated Investment Holdings (Pty) Ltd & others v Chief Executive Officer, South African Social Security Agency & others^[13] Froneman J stated that the idea that inconsequential irregularities are of ‘no moment conflates the test for irregularities and their import’;^[14] that the ‘notion that, even if proven irregularities exist, the inevitability of a certain outcome is a factor that should be considered in determining the validity of administrative action’ is incorrect;^[15] and that when an irregularity has been established, there is ‘no room for shying away from it’.^[16]

[18] The next issue that is raised is an argument that because Magadlela did not have the information that was relevant to his decision before he decided to arrest Weitz he did not exercise his discretion irregularly. This argument is based on an incorrect premise. If a factor is relevant to the exercise of a discretionary power, it is no excuse for the decision-maker to say that he or she did not know about it. What is relevant to an exercise of a discretionary power, where the empowering legislation does not expressly list relevant factors, is deduced from the general tenor of the empowering legislation.^[17] The taking into account of a factor that is relevant is a prerequisite for a valid decision and it does not matter that the decision-maker did not know of it at the time.^[18]

[19] There is no reason why Magadlela should not have acquainted himself with the personal circumstances of Weitz that were relevant to his decision whether to arrest him or not. As he had been investigating the case for seven months, he had ample time to do so. This was clearly not the type of case where time was of the essence and a spur of the moment decision had to be taken (as where, for instance, a stranger commits a crime in the presence of a policeman). It is startling that, in his investigation, the one person who Magadlela never spoke to was its subject, Weitz.

[20] In my view, for the reasons set out above, there is no reasonable prospect that another court may arrive at a conclusion different to mine in respect of Magadlela’s failure to take into account relevant considerations. Strictly speaking, that is the end of the matter. If Magadlela did not take into account relevant considerations, his exercise of discretion was tainted by illegality. The failure to take into account relevant considerations is a ground of invalidity separate from the ground of irrationality. For the sake of completeness I shall, however, deal with the remaining grounds of appeal which concern my finding that Magadlela’s decision was also irrational.

[21] Woolf, Jowell and Le Sueur explain the meaning of irrationality in administrative law as follows:^[19]

‘Although the terms irrationality and unreasonableness are these days often used interchangeably, irrationality is only one facet of unreasonableness. A decision is irrational in the strict sense of that term if it is unreasoned; if it is lacking ostensible logic or comprehensive justification. Instances of irrational decisions include those made in an arbitrary fashion, perhaps by “spinning a coin or consulting an astrologer”. “Absurd” or “perverse” decisions may be presumed to have been decided in that fashion, as may decisions where the given reasons are simply unintelligible. Less extreme examples of the irrational decision include those in which there is an absence of logical connection between the evidence and the ostensible reasons for the decision, where the reasons display no adequate justification for the decision, or where there is absence of evidence in support of the decision.’

[22] I found that Magadlela’s decision to arrest Weitz was objectively irrational for the following reasons:^[20]

‘There is a further basis for my finding that Weitz’s arrest was unlawful. Magadlela took into account the events of one day more than seven months before, involving, on his information, the ignoring of one detention warrant. From this he concluded that Weitz would not obey a summons, drawing the unwarranted conclusion that Weitz was disrespectful of all court orders and that he does not obey any orders from the courts. (He also concluded that Weitz was dangerous and that his own life would be in danger when he went to arrest him, so he arranged for heavily armed policemen to accompany him into Weitz’s office.) Secondly, there is a logical problem with him linking the ignoring of the detention warrant in Weitz’s official capacity, on the one hand, and a summons served on him to attend court, which would have had a direct bearing on his personal liberty if he ignored it. Thirdly, he only considered a factor that he believed militated against Weitz obeying a summons but never considered it against and weighed it against a host of obvious factors that would have pointed in the opposite direction. Fourthly, Magadlela formed the opinion that it was necessary to arrest Weitz not because he would abscond, thereby avoiding his trial, but because he would remain where he was but simply ignore a summons to appear in court. There is no justifiable basis for this rather strange opinion. I conclude from the above that the decision to execute the warrant was objectively irrational and that renders Weitz’s arrest unlawful.’

[23] I am satisfied that these conclusions are justified on the evidence and are conclusions that accord with the law: my finding, in essence, was that there was no rational connection between Magadlela’s reasons and his decision to arrest. His reasoning was flawed because he took one incident seven months previous (without, what is more, the context which he could have obtained from Weitz had he spoken to him) and from it extrapolated the unwarranted and illogical conclusion that, as it was stated in the application for leave to appeal, Weitz had ‘no regard for Court orders’.

[24] Furthermore, to the extent that Magadlela was influenced by the allegation that Weitz breached a standing order that required prisoners to be restrained when in transit, that reliance was misplaced and illogical for the following reasons. First, Weitz ordered De Bruin to be unshackled not when he was in transit but when he was in the police station so that he could be sent back to court as requested. That cannot be held against him. Secondly, he was taken back to court, apparently unshackled, by Captain Terblanche and not by Weitz. That too cannot be laid at his door. Thirdly, to draw the inference from this that Weitz was ‘a person who held lawful orders in contempt’ is unfounded and illogical. Fourthly, to then draw the conclusion that he ‘would be unlikely to obey a summons’ is, with respect, absurd. I accordingly conclude that, as far as the finding of irrationality is concerned, there are no reasonable prospects of another court arriving at a conclusion different to mine.

[25] In the result, the application for leave to appeal is dismissed with costs, including the costs of two counsel.

_____________________

C Plasket

Judge of the High Court

 

APPEARANCES

Applicants: P Zilwa SC instructed by the State Attorney, Port Elizabeth and Netteltons, Grahamstown

Respondent: P Mouton and I Bands instructed by GP van Rhyn Minnaar & Co, Uitenhage and NN Dullabh & Co, Grahamstown

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