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FORM A

FILING SHEET FOR EASTERN CAPE, GRAHAMSTOWN

JUDGMENT

PARTIES:  

LENA SYDNEY v MINISTER OF SAFETY AND SECURITY

            Case Number: CA115/2009

            High Court: GRAHAMSTOWN

            DATE HEARD: 12 MARCH 2010

DATE DELIVERED: 18 MARCH 2010

JUDGE(S): Judge President C.M. Somyalo

Judge C.T. Sangoni

LEGAL REPRESENTATIVES –

Appearances:

            for the Plaintiff(s): Adv. J.W. Wessels

            for the Defendant(s): Adv. R. Laher

Instructing attorneys:

            for the Plaintiff(s): N N Dullabh & Co

P.O. Box 469

GRAHAMSTOWN

            for the Defendant(s): The State Attorney

29 Western Road

Central

PORT ELIZABETH

CASE INFORMATION –

            Nature of proceedings:

            Topic:

            Key Words:

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)

Case No.: CA115/2009
Date delivered: 18 March 2010
In the matter between:
LENA SYDNEY	Appellant
and
MINISTER OF SAFETY AND SECURITY	Respondent

J U D G M E N T

SOMYALO JP:

Introduction

1. The appellant instituted a damages claim against the respondent in the Magistrate’s Court, Port Elizabeth for unlawful arrest and detention arising from an incident in which the appellant was arrested without a warrant on a charge of housebreaking with intent to steal and theft by members of the South African Police Service (SAPS) on 19 March 2006 and thereafter detained at Gelvandale Police Station until later that same day.

2. At the trial the Magistrate found that the arrest and detention were reasonable, justified and therefore lawful. In the result he dismissed the plaintiff’s claim with costs. The appellant now appeals against the whole of the judgment handed down by the Magistrate on the following grounds:

[2.1] that the Defendant, having accepted the onus rested upon it to justify the arrest without a warrant and subsequent detention, failed to discharge that onus and that the Honourable Magistrate should have found accordingly;

[2.2] that the Defendant’s witness, Constable Khondlo, contradicted herself on material issues; that her evidence was neither credible nor reliable, and that the Honourable Magistrate should have found accordingly.

Background

3. It is common cause that on 19 March 2006 the appellant was arrested without a warrant on a charge of housebreaking with intent to steal and theft by members of the South African Police Service. It is also common cause that the respondent bore the onus to prove that the arrest was lawful.

4. The only witness called was Constable Khondlo who testified on behalf the respondent. In her evidence in chief she stated that she acted on the information supplied on the docket by the complainant Jenny Booysen. She went to the appellant’s address to look for the appellant and one Hiron on 19 March 2006, because they were both suspects in the case.

5. In cross-examination Constable Khondlo confirmed that according to the statement of the eyewitness (Nettie Harmse), there was no reference to the appellant. The only person mentioned in the eyewitness’ statement is Hiron as being the person who was seen busy in the complainant’s room. She further confirmed that the docket contained a statement of the complainant, who stated that her mother Nettie had told her that her nephew, Hiron, was with the appellant in the complainant’s room earlier on the day of the commission of the alleged crime. Constable Khondlo further confirmed that she was aware that the eyewitness made no mention of the appellant in her statement. When pressed for a reason why she arrested the appellant, knowing that the eyewitness did not implicate the appellant, she testified that she used the statement of the complainant and the investigation diary and further agreed that according to the investigation diary, after the complainant had been interviewed, there was only one suspect mentioned, namely Hiron. Thereupon she agreed that she had no information under oath or reasonable grounds to suspect the appellant.

6. She further testified that she was not present when the complainant was interviewed. When questioned by the Magistrate she however stated that she personally interviewed both the complainant and the eyewitness. Her version that she interviewed the two potential witnesses is also not supported by any entry to that effect in the investigation diary. When asked by the Magistrate as to why she did not obtain a warrant of arrest before arresting the appellant, she replied that she did not have a chance to do so.

7. It is clear from the docket that the matter was reported to the police on 13 January 2006. The statements from the complainant and the eyewitness were taken on 14 January 2006. Constable Khondlo received the docket as investigating officer on 28 January 2006. When asked by the Magistrate why she arrested the appellant instead of giving her a summons to appear in Court, she testified that she was instructed to do so by the Station Commissioner. The appellant’s case was closed without any other witness being called to testify. Mr Mamase, who represented the respondent, conceded in his address on the merits that in his opinion there was no evidence to justify the arrest.

Appellant’s submission

8. Mr Wessels who appeared on behalf of the appellant submitted that constable Khondlo who arrested the appellant and was the only witness called to testify on behalf of the respondent, failed to adduce any evidence to prove that the arrest was indeed lawful.

Respondent’s submission

9. Ms Laher who appeared on behalf of the respondent submitted that Khondlo arrested the appellant based on information contained in the police docket and that she interviewed both the complainant Jenny Booysen and the eyewitness Nettie Harmse before arresting the appellant. She further submitted that after Khondlo confirmed what had been recorded in the docket with regard to the identity of the suspect she reasonably justifiably and lawfully proceeded to arrest the appellant. Nothing in the docket indicates why the appellant was arrested. Reference to her is only to the extent that the eyewitness said to the complainant “Hiron Sydney was hier met sy antie, Leana Sydney vroeër dieselfde dag”.

The issue

10. The main issue is whether the information given to the arresting officer was sufficient to cause a reasonable person in the position of Constable Khondlo to form a reasonable suspicion that an offence had been committed by the appellant. Framed differently the question would be whether or not the Magistrate in the court a quo erred in finding that the arrest was lawful and justified on the basis of the evidence recorded which in my view did not implicate the appellant in the commission of the offence for which the appellant was arrested.

The Discussion

11. Section 40 (1) of the Criminal Procedure Act 51 of 1977 provides that:

“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;

…”.

Breaking or entering any premises, whether under the common law or a statutory provision, with intent to commit an offence (is a schedule 1 offence).

12. Snyders AJA in Minister of Justice and Constitutional Development and Another v Zealand,¹ held that:

“The right to freedom is entrenched in the Constitution of the Republic of South Africa, 1996. When a person is arrested and detained public power is being exercised by the executive administration of the State which may not exercise any power or perform any function beyond what is conferred by law. This is in accordance with the doctrine of constitutional legality, an incidence of the rule of law, which is a foundational value of the Constitution.”

The significance of this statement is that the exercise of public power must at all material times be consistent with the values enshrined in the Constitution of the Republic.

13. Constable Khondlo testified that according to the statement of the only eyewitness, Nettie Harmse (also known as Nettie Booysen) Hiron was seen in the complainant’s house. What is very strange is that when Constable Khondlo conducted the raid she arrested the appellant. She justifies her reason for the arrest on information she heard from complainant. The complainant says she heard this information from her mother who is the only eyewitness in the case (Nettie Harmse). Strangely Nettie did not provide this information in the sworn statement made to the police. Constable Khondlo was also aware that the appellant’s name was never mentioned by Nettie in the written statement. Why the Constable decided to believe the complainant and not Nettie, who was the only eyewitness has not been explained. In any event according to the statement in the docket the appellant was only reported to have been with Hiron earlier the same day. That does not refer necessarily to the time when the offence was committed. Also, Constable Khondlo does not say that when she interviewed the complainant and the witness, according to her later version, the appellant was implicated.

14. It is trite that police officers who purport to act in terms of
    s 40(1)(b) should investigate exculpating explanations offered by a suspect before they can form a reasonable suspicion for the purposes of a lawful arrest.² The abovementioned view finds support in S v Purcell-Gilpin³ where the court held that a police officer who suspects that a crime has been committed must, if he has the opportunity, take the trouble to either corroborate his suspicion or let it to dissipate. It is said that this ought to be done particularly where the suspicion is somewhat unsubstantiated. A peace officer, who fails to substantiate his suspicion even though he has the opportunity to do so, does not act reasonably. It follows that his suspicion will not be reasonable.⁴ The arresting officer in the present case had ample time (approximately 2 months) to conduct the investigation in order to substantiate her suspicion, but she did nothing of that sort. A reasonable thing to do in those circumstances was to verify the conflicting statements by Jenny Booysen and Nettie Harmse. This was a clear failure by the police officer to take responsibility to evaluate the information at her disposal and form a reasonable suspicion as that is required by the law.

15. The officer had the information from the eyewitness and a statement from the complainant who did not witness the crime. What did she do with this information? She decided to arrest the appellant right away without evaluating the information with the intent to substantiate her suspicion. There is no evidence to support that an investigation or evaluation of that information was done in this case. Further in her evidence Constable Khondlo conceded that she had no information under oath or reasonable grounds to suspect that the appellant whom she arrested was a suspect in this case. She further says, “I arrest him because the complainant instructs me that it’s him”. In my view, Constable Khondlo having had the information at her disposal failed to exercise her discretion properly and this renders the arrest wrongful. In the record Constable Khondlo further conceded that she was instructed by the Station Commissioner to arrest the appellant. This concession clearly shows that the Constable did not exercise her discretion as required by law. She simply acted upon the instruction given by the Station Commissioner. The question to be asked is whether her explanation for the arrest is justifiable in law and can it be held that on the basis of these revelations the arrest was lawful. In my view, it cannot be. There is nothing in the record which indicates on what basis the Station Commissioner would issue such instruction.

16. Case law provides that arrest is prima facie unlawful:⁵ This then means that the defendant has a burden of proof to discharge, in other words the defendant has to prove that reasonable grounds existed for the arrest. This point of view is supported in Mabaso v Felix⁶. The facts in Botha v Lues⁷ are a good illustration of arrest on insufficient grounds and of the subsequent determination of damages. Where there are insufficient reasons to justify the arrest, the arrest would be wrongful and this would render the state liable to be sued for damages incurred as a result of the unlawful arrest. The onus rests on the arrester to justify the lawfulness of the arrest. The peace officer’s arresting powers are in each case qualified by the requirement that there be a reasonable suspicion or presumption, which means that an objective standard is applied to the conduct of the peace officer. The police official who arrests must have a reasonable suspicion. The information given must be sufficient to cause a reasonable person to believe that an offence has been committed by the alleged perpetrator. In the present case there is inadequate information that can be relied upon to form a reasonable suspicion that the appellant committed the alleged offence.

17. Individual liberty prevailed in Gellman v Minister of Safety and Security.⁸ At paras [90]–[94] the court followed the constitutionally more acceptable approach adopted in Louw v Minister of Safety and Security⁹ and expressly rejected the strict interpretation attached to s 40 in Charles Minister of Safety and Security.¹⁰ The judgment contains valuable guidelines to police officers in situations where they have to exercise their discretion to either arrest a suspect without a warrant or to rely on less drastic measures to ensure the latter's presence in court. While considering whether there are reasonable grounds to suspect that the person to be arrested has committed an offence in Schedule 1, a policeman should analyse the evidence at his disposal critically. More often than not it would not suffice to form the required reasonable suspicion on the basis of a witness' statement alone. It is advisable to find evidence that corroborates such a statement. But where the policeman himself witnesses the event that has given rise to the reasonable suspicion contemplated in s 40, corroborative evidence may be unnecessary. The arresting officer in this case did not witness the event, in the circumstance it is fair to say the police should have conducted an investigation in order to gather evidence that would confirm her suspicion. Salduker J et Levenberg AJ in Gellman¹¹ supra opined that the following guidelines could be particularly helpful to police officers about to make warrantless arrests:

“[97] To sum up, the approach of a peace officer in determining whether or not to make a warrantless arrest should preferably be as follows:

[97.1] The policeman should consider whether there are reasonable grounds to suspect that the person to be arrested has committed an offence referred to in Schedule 1.

[97.2] In determining whether such reasonable grounds exist, the policeman should analyse the evidence at his disposal critically.

[97.3] While there may be circumstances in which a policeman can form a reasonable suspicion based only on a witness statement, those circumstances will be rare. It would be preferable for a policeman to find corroborative evidence before making an arrest.

 

[97.4] Where the policeman himself witnesses events which give rise to a reasonable suspicion that a Schedule 1 offence has been committed, it may be that no corroborative evidence is necessary.

[97.5] After the policeman has determined that there are reasonable grounds for suspecting the commission of a Schedule 1 offence, he must exercise his discretion to determine whether there are circumstances which militate in favour of effecting a warrantless arrest. Usually the risk of the suspect absconding or committing further crimes if the policeman delays in obtaining a warrant, would militate in favour of a warrantless arrest.

[97.6] A policeman should always consider whether the accused's attendance can be procured through a summons, as this is the preferable method of summoning a suspect's attendance at trial. If the policeman concludes that there is a risk of flight if a summons is served on the suspect, the policeman should consider whether the ends of justice may be defeated if he approaches a magistrate or justice of the peace to obtain a warrant.

[97.7] In determining whether or not to effect an arrest, the arresting officer should carefully consider his/her standing orders. Where a police officer exercises a discretion in violation of standing orders, that may in itself be an indication that the discretion was not properly exercised and that the warrantless arrest was unlawful.

18. It must be noted though that the judges stressed in Gellman supra that the previous paragraph does not seek to lay down absolute rules, the police still have a wide discretion in determining whether or not to effect a warrantless arrest. They further stressed that the factors set out above are simply guidelines for police officers in the field to take into account in exercising their discretion. What is reasonable will be assessed against the background of the particular circumstances of each case. The arresting officer in the present case Constable Khondlo failed absolutely to attempt to follow this proposed guideline. This is a clear example of dereliction of duty by the officer of law and a clear violation of Constitutional right to liberty of the appellant. This should not be condoned by the courts of law.

19. In Ralekwa v Minister of Safety and Security¹² the Court correctly conducted its examination into the lawfulness of an arrest against the backdrop of the Constitution. The court held that s 40 does not provide a protection to a police officer who did not form his own suspicion, but relied on the opinion of another person.¹³ In the present case the evidence from Constable Khondlo was that she actually did not form her own suspicion but that she had relied on the say so of the complainant and the instruction of the Station Commissioner. In the circumstances no reliance could be placed on s 40 of the Act to make the arrest lawful. In my view, the appellant is entitled to damages.

20. In his judgment the Magistrate remarked as follows:

“The Court finds that in fact in the light of the police were investigating a crime that was committed of housebreaking and theft and that they were investigating that crime, the Court finds despite the evidence of the defendant’s witness being poor, it accepts that the police, in terms of Sect.205 and also Sect.40 of the Criminal Procedure Act have got a duty to fight crime and maintain law and order and investigate a crime and as such the Court finds that the actions of the defendant’s witness were reasonable in the circumstances and as such despite being relying on information the Court could not expect the police to comply with e very point in order to effect an arrest and as such the Court finds that the action of the police office was reasonable and justified and finds that the arrest was lawful and the detention was lawful and justified.”

21. The Magistrate erred in failing to appreciate that though the police have a duty to fight crime the law requires that in the process of fighting crime they must conduct their operation of crime fighting within the precincts of the law. The law requires the arresting officer to form a reasonable suspicion on the basis of information at his/her disposal before s/he arrests a suspect with or without a warrant. The officer must then exercise his/her own discretion, and not act on the whim or instruction of another without the exercise of his/her own discretion.

22. The parties have agreed that in the event this appeal succeeds judgment for appellant should be entered in the sum of R15 000.00, plus costs.

23. In my view, the appeal should succeed and the following order is made:

1. The appeal succeeds and the magistrate’s order is set aside.

2. The magistrate’s order is substituted with the following:

“Judgment is given in favour of the plaintiff in the sum of R15,000.00 plus costs”.

3. Respondent is ordered to pay interest on the sum of R15,000.00 at the legal rate from 12 September 2007 to date of payment.

4. Respondent is ordered to pay costs of the appeal.

_________________________

C.M. SOMYALO

JUDGE PRESIDENT OF THE HIGH COURT

SANGONI J:

I agree.

_________________________

C.T. SANGONI

JUDGE OF THE HIGH COURT

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