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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION PRETORIA)
                                                                                

(1) REPORTABLE:  YES / NO.

(2) OF INTEREST TO OTHER JUDGES:  YES / NO.

(3) REVISED.

DATE  16/10/2020

                                                              Case No: 33136/2017

In the matter of:

Mc Donald  Mampuru                                                    1^st Plaintiff

Timothy Baloyi                                                               2^nd Plaintiff

  And

The Minister of Police                                                   1^st Defendant

Constable Moloane                                                      2^nd Defendant

National Director of Public
Prosecutions                                                                 3^rd Defendant

JUDGMENT

Maumela J.

1.  In this case, the 1^st Defendant is, Mc Donald Mampuru, a male who was 40 years of age at the time he instituted action against the Minister of the Police, the Defendant. Timothy Baloyi, a male who was 34 years of age was the 2^nd Plaintiff. The action revolves around the following two claims:
1.1. Claim 1 is based on allegations of unlawful arrest where 
       the Plaintiffs claim that members of the Defendant
       subjected them to unlawful arrest and detention from the
       9^th to the 18^th of February 2010.

2.  The Plaintiffs have approached this court to seek in the main, the following orders as indicated in their prayers in the amended particulars of claim, namely: -
2.1 Payment of the sum of R 7 000 000.00 (Seven Million
      Rand);  

    2.2 Interest of the said sum awarded at 15.5% per
      annum as from 14 days of date of judgement to date of final
      judgement and
    2.3 Costs of suit.
 

3.  The action is defended. While the rest of the Plaintiffs are admitted, the Defendants dispute that the arrest was unlawful. They contend that the arrestor simply responded after witnessing a claim being committed. They contended that it is for that reason that the arrest or even called for police backup so as to ensure that those complicit in the commission of the crime be arrested and be brought before a court of law for trial. Both sides led evidence. The court is to determine the success or otherwise of the claim made by the plaintiffs”. 

4.  Mc Donald Thoka was the First witness to be called by the defendant. Under oath, this witness testified that from 2008 he has been under the employ of the South African Police Services. He is ranked constable. On the 14^th of April 2014, he was on duty. After work; he was alone when he drove towards Johannesburg in a blue coloured, unmarked and police owned, Chevrolet Avio. Driving from the direction of Leratong, he saw a white coloured Chevrolet Avio parked next to a robot. He noticed that there was some commotion around the white Chevrolet Avio. He does not know why the white coloured Chevrolet Avio stopped at that place. He saw one of three people surrounding the white white coloured Chevrolet Avio, taking a bag out of it which that person handed over to another behind him, who took flight. He stated that he can recall the other two men who remained. As he approached, one of the two men dropped a cell phone onto the ground which the witness picked up for safe keeping.

5.  He stated that at that time a ‘Visible Policing’ vehicle came by. As he stopped it, the two men fled towards the bushes. He drove towards them and they changed their direction. More police backup arrived and the two men ended up arrested and detained. He and a Colonel moved towards the white coloured Chevrolet Avio where they found an elderly female who had been subjected to robbery of the hand-bag he saw one of the three men taking out of her vehicle earlier on. The lady told them that her hand-bag, cell-phone and car keys had been snatched by three men from inside her vehicle. The lady identified the cell phone he had picked up earlier as belonging to her. The Colonel helped the victim in contacting her family and she was taken to the police-station.

6.  Mpumelelo Patrick Molaulwi was the second witness to be called by the defence. Under oath, he stated that for 10 years he has been a member of SAPS. He is assigned to the Detective Unit and is stationed at Roodepoort in Horizon. He stated that he is before court to testify in a case against two culprits who robbed an elderly woman. He said that he is the messenger who was dispatched by the court to serve the process on individuals in his capacity as an Investigating Officer.

7.  He stated that he found out that the two culprits who were arrested have previous convictions. He cannot recall the offences involved in the previous convictions. He stated that the plaintiffs who were legally represented at state expense unsuccessfully applied for bail. The reason for the denial of bail was because there were previous convictions recorded against their profiles. He said that because he was not involved in the bail application, he did not have to testify at that stage. The last time he heard about progress in the criminal trial was when he referred the docket back and on the docket, it was noted that the culprits were acquitted.

8.  Under cross-examination he told the court that the docked was given to him in the year 2014. He stated that by then, the culprits were in the holding cells. He took the docket to court. He kept track of the docket but he cannot recall everything. However, he remembers that the complainant was an elderly woman. He told the court that there was a statement made by the Arresting Officer. He said that he generated records of previous convictions and he provided a J88 form the victim because she was injured. He stated that a doctor completed the J88 form, using the patient’s file. According to him, the victim had sustained an injury near her eye. He stated further that he cannot recall what the doctor noted on the J88 form. He cannot recall whether the Arresting Officer described the wound or not. He said that he did not interview the victim because her family did not want her to relive the ordeal.

9.  The witness told court that he was satisfied with what was noted on the docket. He said that he did not visit the scene because going there would not have served him any purpose. He traced witnesses in order to serve subpoenas on them and the victim, the Arresting Officer and one Colonel Lang. He told the court that he did not try to locate other witnesses. He agrees that the scene of the crime in issue in this case is at a sport where casual garden workers await potential part-time employers. On the day he went to the scene, there were no witnesses around, He was content with what was noted by the Arresting Officer.

10. This witness testified that one of the culprits was on parole. He revealed the culprit’s previous convictions. He also recalls the charge against the plaintiffs. He stated that when the culprits were in prison, he did not take any other steps. He said that he cannot recall the name of the doctor who examined the complainant. According to him, one of the culprits was on parole. For that reason, he considered both of them to be a flight risk.

11. Under cross examination, this witness stated that at that time, he had been assigned to the Organized Crime Unit from 2011. He is familiar with ‘Police Standing Orders’. He is not familiar with the place where the crimes in this case took place. He stated that the scene of the crime is about 5 kilometers from Roodepoort Police Station. He said that Chemdo in Krugersdorp is the place of his employment. He told the court that the window of the Chevrolet Avio was already open when he saw one of the men sticking his hand into it and removing a hand-bag. When he saw that, he was at a distance of about 15 meters. He stated that he drove on the left side of the road and the white Chevrolet Avio faced the opposite direction.

12.  He said that at the time when he saw the white Chevrolet Avio, two men stood on its driver’s side and one on the left. He stated that the road was not very busy at the time. He denied that he stopped abruptly. He is adamant that the two men he spoke about were part of a threesome of culprits. He also denied that the culprits had already fled when he stopped. The witness denied that he arrested the wrong people. He disputed that the victim of the crime pointed out to him that he is arresting the wrong culprit. He said that when one of the men dropped a cell-phone. According to him, the culprits were two. He stated that he picked up the cell phone that had been dropped. He approached the suspect who tried to push him. He said that he wielded his firearm with his right hand. According to him, the firearm was at a 45% angle.  

13.  When the cell phone fell, he was looking at the culprits. He walked towards where it lay fallen. He then approached the two suspects who were walking away. He told the court that he announced to the suspects that he is a member of the Police Services. He told the court that the culprits pushed him away.  He withdrew a little and then saw a Roodepoort Police vehicle approaching. He testified that he carries his service pistol with him all the time. At the time he alighted from his vehicle, he had drawn it, (the firearm) in order to secure the crime scene. 

14.  The witness testified that the culprits were arrested after police back-up had arrived. He stated that he showed the cell phone he had picked up to the victim who confirmed it as hers. He denied having wrongly implicated the plaintiff. Together with other members of the police, he ordered the culprits to lie down. He handcuffed them, but he did not take photos of them since he had no reason to do so. He told the court that he never showed pictures of the culprits to the victim. He denied having taken the victim to the back of the van from where the victim told him that the wrong people were arrested.

15.  The witness told the court that the Colonel drove the culprits to Roodepoort Police Station. He also drove there in his own vehicle. He is not certain about the charges that were preferred against the plaintiffs. He said that the name of the victim is Jetta Batty. He did not see wounds or blood on the victim. He told court that the two culprits attempted to dispossess him of his firearm at the time when they pushed him. He did not draft the charge about the attempt by the culprits to dispossess him of the firearm. He told the court that he cannot recall who searched the culprits and explained to them their constitutional rights. He stated that he knows that the two culprits were on parole and that is why they were not admitted to bail. He attended the trial on the day he testified. He disputed that the contention by the plaintiffs to the effect that the presiding officer rejected his version. He stated that the victim did not identify the culprits.

16.  The defence contends that the detention of the plaintiff was reasonable in that he harboured a reasonable suspicion that the culprits committed a schedule 6 offence. The respondents also argue that in this case, there never was a need for the plaintiffs to employ services of two councils.

17.  Section 2 of the Constitution Act^[1] provides among others that: everyone who is arrested, for allegedly committing an offense, has the right to:
(d) be brought before a court as soon as reasonably possible,
      but not later than:
     (i) 48 hours after the arrest; or
     (ii) the end of the first court day after the expiry of the 48
          hours, if the 48 hours, expire outside ordinary court
          hours or on a day which is not an ordinary court day;
(e) at the first court appearance after being arrested, to be  
     charged or to be informed of the reason for the detention to
     continue, or to be released and
(f) to be released from detention.

18.  The respondent submits that where it regards interpretation of statutes, the words in a statute must be given their ordinary grammatical meaning, unless to do so would result in an absurdity. There are three important interrelated riders to this general principle, namely,

    (a) that statutory provisions should always be interpreted           purposively;

    (b) the relevant statutory provision must be properly                   contextualized; and

    (c) all statutes must be construed consistently with the               Constitution, that is, where reasonably possible, legislative        provisions ought to be interpreted to preserve their                     constitutional validity. This proviso to the general principle is     closely related to the purposive approach referred to in (a).

19.  It is trite that where a lawful arrest is alleged, the plaintiff need only prove that he or she was subjected to an arrest. That having been done; an onus lies on the defendant to prove that the arrest was lawful. In the case of Mbotya v Minister of Police^[2], the court stated the following: “As regards onus of proof in these matters it is settled law that a plaintiff need only allege the deprivation of his freedom and require of the defendant to plead and prove justification. It is thus the defendant who bears the onus of proving the lawfulness of the arrest.” – See Minister of Law and Order v Hurley^[3];  Minister van Wet en Orde v Matshoba^[4]

20.  Our law requires that in instances where officers of the law effect an arrest without a warrant and propose to rely on the aspect of reasonable belief that a crime has been committed, such belief has to be based on reasonable grounds. In the case of Minister of Law and Order and Others v Hurley and Another^[5] the court stated the following: “Having concluded that the Court was not precluded from considering whether Coetzee had reasonable grounds for his aforesaid belief concerning Kearney, I now turn to the question of onus, i.e. the question whether the appellants had to prove that Coetzee had the required belief, or whether the respondents had to prove that he did not. The Court a quo did not decide the question, but held (at 725D - E) that, even if one assumed that the onus was on the respondents, they had discharged it. I deal with the question in the paragraphs that follow. Arrests without warrant by peace officers acting under the B powers of arrest conferred upon them by the Criminal Procedure Act 51 of 1977 and its predecessors (Act 31 of 1917 and Act 56 of 1955) have on many occasions given rise to disputes in which the lawfulness of an arrest was in issue, and in cases of this kind the question of onus may be of vital importance. It has been held, or assumed, in a number of cases decided in the Provincial and Local Divisions of the Supreme Court that the onus lies on the peace officer who made the arrest in issue to prove that he acted lawfully, i.e. that he acted within the powers of arrest conferred upon him by statute. Some of those decisions are referred to in Botha v Lues^[6]. In that case a Full Court of the Orange Free State Provincial Division dissented from those decisions and held that the onus was on the plaintiff, who claimed damages on the ground of an alleged wrongful arrest, to establish the unlawfulness of the arrest of which he complained. The basis of this finding by the Court was that, if a peace officer who is empowered by statute to arrest a person whom he reasonably suspects of having committed an offence proceeds to arrest someone whom he so suspects, the arrest cannot be unlawful, since the exercise of a power which is conferred by law cannot constitute unlawfulness ("uitoefening van 'n bevoegdheid (en plig) wat van regsweë verleen word kan nie wederregtelikheid daarstel nie": at 691C - D). Since unlawfulness is necessary to establish liability, the Court said (at 691D - E), a plaintiff who complains of an arrest can succeed in his claim only if he establishes that the person who arrested him did not have the required suspicion. When this decision came on appeal to this Court (see Botha v Lues^[7], CORBETT JA found it unnecessary to decide the question of onus. He did say, however, that it was doubtful whether the decision of the Provincial Division concerning the question of onus could be reconciled with what was said in certain decisions of this Court. The learned Judge referred to Mabaso v Felix^[8]  and Ramsay v Minister van Polisie en Andere^[9]. In the judgment of the Provincial Division no reference was made to the judgment of this Court in Brand v H Minister of Justice and Another^[10], a case in which the appellant claimed damages for alleged unlawful arrest and detention in consequence thereof. In the course of his judgment OGILVIE THOMPSON JA, dealing with the question of onus, said (at 714F - H).”

21.  Mcdonald Mampuru, (the First plaintiff), told the court that on the 14^th of September 2014, at Main Reef road, Roodepoort, he together with the second plaintiff were seeking employment from prospective employers. Such employers would drive to the area where they were positioned and engage them to do a variety of menial jobs. He said that for that reason, he; the second plaintiff and others waited at the pick-up place from the morning. 

22.  He said that while they stood on the pavement, he noticed a white vehicle, driven by a white lady, coming to a stop on the opposite side of the road where approximately five to six people stood. From a distance of about 15 m, the five to six people and the white lady engaged in a conversation to which he did not become privy. He said that he then heard the sound of screeching brakes from a second vehicle which was travelling in the opposite direction. Once the second vehicle stopped, the five to six people standing around the white vehicle started to flee towards the nearby open bush, in the direction of the squatter camps. He realized that the driver of the second vehicle was a police officer and that he was wielding a firearm. He said that the policeman began to run in the direction of the commotion.

23.  He said that moments later, the driver of the second vehicle, who had turned out to be a policeman; (“the first policeman”), appeared from the direction where there had been a commotion involving the young man he had grabbed. He said that the police man was dragging the young man towards the rear end of the second vehicle. As this was happening, he together with other people shouted to the first policeman, alerting him that the young man he grabbed is not complicit regarding the offence that was committed which involved the white vehicle. He said that he and others screamed at the first policeman because they had noticed that the young man was not part of the group of four to five people who committed the offense where the white vehicle was, who took flight into the bush.

24.  He said that the policeman then produced a pair of handcuffs from the boot of the second vehicle however, before he could handcuff him, the young man, broke loose and took flight amidst whistles and huge noise from bystanders. He said that he saw the first policeman making a phone call on his cell phone and then a police van, being driven by a white policeman approached from the direction of Krugersdorp towards the policeman. The second policeman was white. He explained that the first policeman then made another call and more police vehicles arrived at the scene. He testified that the first and the white policeman had a conversation during which the first policeman pointed in their direction. That made him start retreating.

25.  He said that neither him nor the second plaintiff pushed the first policeman at any time. He told the court that the two policemen who were armed came to their site and ordered them to lie on the ground. The two of them were then put into the back of the white policeman’s police van. According to him their constitutional rights were never explained to them. They were not searched. One of the two policemen photographed them using a cell phone. He said that a few minutes later, the rear door of the police van opened, and the complainant was asked to confirm the two of them as the suspects who robbed her whereupon the complainant declared them innocent. 

26.  The first plaintiff further explained that the complainant had no injuries. He stated that from there, he and the second plaintiff were transported in the white policeman’s police van to Roodepoort Police Station, while the first policeman followed behind in the second vehicle. Thereafter, they were taken to the police cells where they were detained. They were woken up in the night and they had their fingerprints taken. He said that the next morning, the second defendant came to the police cells to confirm their residential addresses. He took the first plaintiff together with another police official to confirm their residential addresses in Meadowlands in Soweto.

27.  He told the court that over their first court appearance, they were informed that they were charged with a schedule 6 offence and were remanded in custody and incarcerated at the Krugersdorp Prison. They were told that their next court appearance is to be at a different courthouse where there was to be a formal bail application. He said that at the next court hearing, he testified and that is when it was read out to them that the complainant was injured during the alleged robbery and for that reason. He stated that they were told that they would be denied bail because there are their previous convictions recorded against their names, and that the victim in the crime of which they stood accused got injured. They were detained further at the Krugersdorp Prison.

28.  He stated further that the case was postponed on several occasions for want of inter alia Tshivenda or Shangaan interpreters. He said that at the trial, only the first policeman and the complainant testified. He also testified in his own defence. He said that at the trial, the first policeman testified that he saw the first and second plaintiffs at the window of the complainant’s white vehicle and further saw them take the complainant’s handbag from her vehicle before they fled into the bush. He said that the first policeman told the court that the two of them attempted to rob him of his firearm. He told court that upon being asked, the complainant told court that the culprits who robbed her are not in court and that she never went to hospital. He said that on the 29^th of October 2015, the presiding Magistrate acquitted of all the charges. He said that they were not immediately released, but first returned to the Krugersdorp Prison before release.

29.  First Plaintiff told the court that conditions in the prison- cells were bad. He said that the cells were filthy and not conducive at all. He said that the blankets provided were filthy. They had blood stains and were not clean. The toilet was blocked and not properly functioning. He told the court that there was no privacy for purposes of answering the call of nature and inmates would use the toilet even as he or others would be having a meal. He testified that before the incident he earned between R300.00 and R450.00 per day, which sum of money was paid in cash, and on other days, he would wash taxis in Meadowlands in return for R15.00 per taxi. He said that there were days when he would go with no income at all. not earn anything the whole day.

30.  Under cross examination, the first plaintiff told the court that in the case with regard to which he was on parole for the second plaintiff was not implicated. He said that on the day of the incident, he was seeing the first policeman for the first time. He suspected that the first policeman took exception to him and other onlookers shouting to indicate that he was apprehending the wrong person. He denied having been in the company of the young man. He told the court that the first policeman did not give chase after the people who fled into the bush. He said that he did not witness it when the complainant was shown a cell-phone and asked if it belongs to her. He denied that he and two others robbed the complainant.

31.  The second Plaintiff; Timothy Baloyi also testified in defence. He told the court under oath that he was before court to testify about the day he was wrongly arrested and he demands compensation for it. He stated that on the day of the incident, he was in the company of the first plaintiff. He said that on that day, he was in search of employment from prospective employers, who would drive to that area to engage them to do menial jobs like gardening or painting work.

32.  He said that while waiting there; he saw a white vehicle surrounded by more than four people. At the time, another vehicle approached at a high speed and it stopped immediately. He said that the driver of the vehicle which came at a high speed alighted wielding a firearm and went to the spot where there was a commotion. He said that people there started to scatter, running in different directions. He stated that because of the way the people surrounded the vehicle, he could see that something was not right.

33.  He said that he saw the first policeman holding a young man in shorts and dragging him towards the boot of his car, where he proceeded to open it, at the same time taking handcuffs out. He stated further that at that time, there was the sound of many voices saying, “it’s not him, it’s not him”. He said that subsequent to that, the young man broke free and ran away. From there, the first Plaintiff and the first policeman exchanged words. The first policeman then took out a cell-phone and made a call whereupon a police-van, driven by a white policeman arrived. He testified that the white policeman took out a “big gun”, (huge firearm), and instructed them to lie on the ground. They were then handcuffed and put inside the police-van in which they were driven to Roodepoort police-cells, where they were detained with other arrestees in the police cells.

34.  The second Plaintiff corroborated the first plaintiff about the first plaintiff being taken by the second Defendant to verify their residential addresses. He stated that he was provided with a piece of paper on which it was noted that they are charged with robbery. This witness testified that they appeared in the Magistrates Court after the third day, where they were remanded and told that at the next court hearing they were to appear in a different court where a formal bail application was to be conducted. He said that on the next hearing, it was read out to him that the complainant was stabbed during the alleged robbery and for that reason he would not be admitted to bail. He was detained further at the Krugersdorp Prison. He testified that the matter was postponed approximately nine times. It was then set down over two days and the first policeman testified, telling the court that the plaintiffs were in possession of a firearm and that the complainant was stabbed. He said that the complainant told court that the people who robbed her were not in court.

35.  The second plaintiff told court that he first saw the complainant, on the day of the incident when she (the complainant), was called to the back of the police van where he and the first plaintiff were seated and handcuffed. That is when the complainant was asked whether he and the first plaintiff at the ones who robbed her and the complainant exculpated them. He testified that the Magistrate had acquitted them. The second plaintiff painted the same bleak picture concerning conditions in the prison cells as did the first. He two consider the prison cells not to be conducive for human habitation.

36.  He stated that the food was bad and he slept on the overcrowded floor with one smelly blanket and that there was lack of privacy and sufficiency concerning ablution facilities. He said that at Krugersdorp Prison, the conditions were worse in that they were mixed with gangsters. As a result, he was robbed of food which his visitors would bring for him. He was made to sleep on the floor. He testified that before the incident, he earned approximately R350.00 per day, depending on the size of the property he had to work on.

37.  Under cross examination, he testified that the distance between the place where he stood, and the place where the incident took place was approximately ten to fifteen meters. He said that the policemen caused the road and came over to him after the first policeman had phoned for back up. He had been part of the people that were shouting to the effect that the wrong person was arrested. He said that because he was lying on the ground and that the policeman stepped on his head; he could not see what happened to the other people who were standing with him. He said that only he and the first plaintiff were ordered to lie on the ground.

38.  The second plaintiff testified that on the day he was seeing the first policeman for the first time. He said that he did not have a problem with the first policeman but he does not know whether the first policeman had a problem with him. He does not know why the first policeman arrested him and the first plaintiff. He denied that he was complicit regarding the crimes committed and agreed with the complainant on that day. He is adamant that he did not run away with the complainant’s bag, neither was he in the company of such a person. He was informed that the complainant in this case got stabbed and that is the reason why he cannot be admitted to bail. Explained that the reason why he did not flee when the police arrived is because he had done nothing wrong. He said that he only saw the first and the white policeman on the scene.

39.  In the case of Duncan v Minister of Law and Order^[11], the court stated the following: “It may, however, be conducive to clarity if, before setting out my reasons for this view, the basis on which an apparently lawful arrest may yet be held to be unlawful, is considered. The so-called jurisdictional facts which must exist before the power conferred by s 40 (1) (b) of the present Act may be invoked, are as follows:
(1). The arrestor must be a peace officer.
(2). He must entertain a suspicion.
(3). It must be a suspicion that the arrestee committed an offence referred to
       in Schedule 1 to the Act (other than one particular offence).
(4). That suspicion must rest on reasonable grounds.”

40.  Our law determines that a person is under arrest as soon as the police assume control over his movements. Arrest is considered to be so serious a measure that it is recommended for implementation only as a last resort. It is considered to be capable of directing far reaching inroads in the life of an individual. In Louw v Minister of Safety and Security^[12], the learned Judge Bertelsman said the following: “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.”

41.  In the case of Thandani v Minister of Law and Order^{[13]  [14]},Van Rensburg J made the following observation: “In considering quantum, sight must not be lost of the fact that the liberty of the individual is one of the fundamental rights of a man in a free society which should be jealously guarded at all times and there is a duty on our Courts to preserve this right against infringement. Unlawful arrest and detention constitute a serious inroad into the freedom and rights of an individual.”

42.  Our law considers that the arrest itself is prima facie such an odious interference with the liberty of the citizen that animus injuriandi is thereby presumed in our law, and no allegation of actual subjective animus injuriandi is necessary. In the case of Minister of Law & Order & others v Hurley & another^[15], the court stated the following: “Arrest constitutes an interference with the liberty of the individual concerned, and it therefore seems to be fair and just to require that the person who arrested or caused the arrest of another person should bear the onus of proving that his action was justified in law.” In Louw v Minister of Safety and Security^[16], the learned Judge Bertelsman said the following regarding arrest: “An arrest is a drastic interference with the rights of the individual to freedom of movement and to dignity..”   Louw v Minister of Safety and Security.

43.  In this case^[17], the Judge stated further: [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.’’ The Constitution does not espouse a dispensation of arbitrary deprivation of freedom of movement and security.

44.  In Mhlanga v Minister of Police, the learned judge stated that: “The question whether an officer was authorized to arrest a person is therefore a factual one, namely whether an offence was committed or attempted to be committed in the presence of a peace officer. This gives the officer a wide discretion, irrespective of the crime that was committed. In the case of Minister of Safety and Security v Kleinhans^[18]; Le Grange J noted that the power to arrest comes into existence when the above noted factual situation exists, irrespective of the trivial nature of the crime.

45.  Arrest entails the exercise of powers with far-reaching consequences in which they have capacity to impact massively against the constitutional rights of those on the receiving end.

46.  In the case of Minister of Safety and Security v Sekhotho and Another^[19], the court stated the following: “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.”

47.  In Section 39 (1) of the Criminal Procedure Act^[20], jurisdictional requirements that ought to be met in order for an arrest without a warrant to be deemed to be a lawful stand prescribed. To that end, this section provides as follows:
39. (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 and
      (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.

48.  What is required of an arresting officer has been considered in some detail by the court in Scheepers v Minister of Safety and Security^[21] where the court stated the following:
“[18] The test is an objective one and the question to be answered is in
         our view whether the arresting officer had direct personal
         knowledge of sufficient facts at the time of the arrest, on the
         strength of which it can be concluded that the arrestee had prima
         facie committed an offence in his presence. Stated differently, did
         the arresting officer have knowledge at the time of arrest of the
         arrestee, of such facts which would, in the absence of any further
         facts or evidence, constitute proof of the commission of the offence
         in question What is further important is the fact that the arresting
         officer must exercise a discretion before effecting an arrest. In
         Raduvha v Minister of Safety and Security and
       Another^[22], the Constitutional Court held as follows:
 [42] Section 40(1) of the CPA states that a police officer “may” and not
        “must” or “shall” arrest without a warrant any person who commits or
        is reasonably suspected of having committed any of the offences
        specified therein. In its ordinary and grammatical use, the word
        “may” suggest that police officers have a discretion whether to
        arrest or not. It is permissive and not peremptory or mandatory. This
        requires police officers to weigh and consider the prevailing
        circumstances and decide whether an arrest is necessary. No doubt
        this is a fact-specific enquiry. As the police officers are confronted
        with different facts each time they effect an arrest, a measure of
        flexibility is necessary in their approach to individual cases.
        Therefore, it is neither prudent nor practical to try to lay down a
        general rule and circumscribe the circumstances under which police
        officers may or may not exercise their discretion. Such an attempt
        might have the unintended consequence of interfering with their
        discretion and, in the process, stymie them in the exercise of their
        powers in pursuit of their constitutional duty to combat crime.
[43] As section 40(1) grants police officers a discretion whether to arrest,
       the two courts should have gone further in their evaluation of the
       evidence to determine whether the facts justified an arrest. This is so
        because an arrest is a drastic invasion of a person’s liberty and an
        impairment of their rights to dignity, both of which are enshrined in
        the Bill of Rights.
[44] In other words the courts should enquire whether in effecting an
       arrest, the police officers exercised their discretion at all. And if they
       did, whether they exercised it properly as propounded in Duncan^[23]
       or as per Sekhoto^[24], where the court, cognisant of the importance
       which the Constitution attaches to the right to liberty and one’s own
       dignity in our constitutional democracy, held that the discretion
       conferred in section 40(1) must be exercised “in light of the Bill of
       Rights”. 

49.  In this case, the court has to determine whether the arresting officer in this case had direct personal knowledge of sufficient facts at the time of arrest, on the strength of which it can be concluded that the arrestee had prima facie committed an offense in his presence. The First and Second Defendants submitted that the Arresting Officer; the First Defendant; arrested the plaintiff because he saw the alleged crime happening in his presence. It was submitted that this was the reason why the first defendant called for police back-up so that the plaintiffs could be arrested.

50.  Immediately after arresting the plaintiffs by way of handcuffing them; the first defendant to them to the police station in compliance with section 39 of the Criminal Procedure Act>^[25]. The court finds that the Arresting Officer exercised his discretion in a manner complainant with  40 (1) of the Criminal Procedure Act^[26]. The Defendants maintain that the claim by the plaintiffs on the basis of allegations of unlawful and wrongful arrest has not been established or proven. The submit accordingly that the said claim stands to be dismissed, with costs.

51.  In this case the defendant proved that the arrestor respondent upon witnessing a crime underway. He called for police backup and when it arrived, he defected the interests. He explained the applicable constitutional rights for the benefit of the arrestees. Appellant effecting an arrest, he and his colleagues transported the arrestees to the police station where he ended up incarcerating them having explained to them the crimes for which they were arrested. There is no evidence suggesting any ulterior motives on the part of the arrestor or his colleagues. The court views that in this case, cost should follow the results.

52.  For that reason, the court finds that the arrest and detention which the plaintiffs were subjected to by the defendants were in compliance with section 40 (1) of the Criminal Procedure Act. Consequently, the court finds that the plaintiff failed to prove that they were subjected to unlawful arrest and detention. In the result, the following order is made:

ORDER.

1. The claim by the plaintiffs based on allegations of unlawful
    arrest and detention is dismissed with costs.

 

 

T. A. Maumela.
Judge of the High Court of South Africa.

 

 

 

 

 

 

 

 

 

 

 

 

REFERENCES

 

For the Plaintiff:                           Adv. Matlapeng

Instructed by:                               Ndlebeattorneys.co.za

 

 

 

For the Defendant:                      Adv. Ramaili

Instructed by:                               Director of Public Prosecution

 

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