South Africa: Eastern Cape High Court, Grahamstown

You are here:
SAFLII >>
Databases >>
South Africa: Eastern Cape High Court, Grahamstown >>
2014 >>
[2014] ZAECGHC 33
| Noteup
| LawCite
Weitz v Minister of Safety and Security and Others (487/11) [2014] ZAECGHC 33 (22 May 2014)
Download original files |
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION – GRAHAMSTOWN)
Case no: 487/11
Dates heard: 12-16/5/14
Date delivered: 22/5/14
Not reportable
In the matter between:
CHRISTIAAN BENJAMIN WEITZ.........................................................................................Plaintiff
and
MINISTER OF SAFETY AND SECURITY................................................................First Defendant
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT.......................................................................................................Second Defendant
NATIONAL PROSECUTION AUTHORITY
OF SOUTH AFRICA....................................................................................................Third Defendant
MARK DUMISA MAGADLELA.............................................................................Fourth Defendant
Claim for damages arising from alleged unlawful arrest and detention – arrest with warrant – ss 43 and 44 of Criminal Procedure Act 51 of 1977 – discretion to arrest – discretion exercised irregularly because relevant considerations ignored and decision to arrest irrational.
JUDGMENT
Plasket J
[1] The plaintiff (Weitz) instituted an action for unlawful arrest and detention and malicious prosecution against four defendants, the Minister of Safety and Security, the Minister of Justice and Constitutional Development, the National Prosecution Authority of South Africa and a police officer, Major General MD Magadllela (Magadlela). The malicious prosecution action has been withdrawn and the unlawful arrest and detention claim has been withdrawn against the second and third defendants.
[2] This judgment concerns only the issue of whether or not Weitz’s arrest and detention were unlawful and not the quantum of damages to which he is entitled if they were. By agreement between the parties, I ordered the separation of these issues at the commencement of the trial.
Background
[3] Weitz was, at the time of his arrest, a lieutenant-colonel in the South African Police Service (SAPS). He was arrested on the strength of a warrant of arrest applied for by a public prosecutor at the Aliwal North Magistrate’s Court and issued by a magistrate of that court. The warrant was executed by Magadlela at 09h55 on 30 June 2009 at the Maletswai Police Station where Weitz worked as the station commissioner. He was transported to the Sterkstroom Police Station where he was detained before being taken to court in Aliwal North the following day. He was released on bail at 13h30.
[4] Weitz’s arrest was the sequel to an incident that occurred some seven months previously at the Maletswai Police Station. Weitz testified that he had received a telephone call from an administrative clerk at the Aliwal North Magistrate’s Court to say that a prisoner, who was on his way to the police station, one De Bruin, was required back at court. He arrived in the custody of warrant officer David Ramohlabi and was shackled to a fellow prisoner, apparently in accordance with standing orders. Weitz ordered Ramohlabi to unshackle De Bruin so that he could be taken back. Ramohlabi refused to obey, stating that he had a detention warrant for De Bruin. After an altercation, the details of which are not relevant, De Bruin was unshackled and taken back to court by a captain Terblanche, where he appeared before a magistrate and was apparently released.
[5] It was alleged by Ramohlabi that during the course of this incident, Weitz had made certain racially offensive statements. This precipitated a complaint by the trade union to which he belonged to the Provincial Commissioner of the SAPS who, in turn, instructed Magadlela to investigate.
[6] It is not necessary to decide whether Weitz’s evidence concerning the call from the court is true or not, whether the rest of his version is true or not and whether or not he made the racially offensive statements alleged by Ramohlabi. The crux of the matter is that Magadlela took statements from a number of people (but not from Weitz) and eventually took a decision to put an affidavit made by him, together with the docket, before the public prosecutor with a view to applying for a warrant of arrest. His evidence was that the public prosecutor was of the view that a case had been made out for the issue of a warrant of arrest. The application was placed before the magistrate. He issued the warrant.
[7] The validity of the warrant is not in issue. In the absence of any proper challenge to its validity, it must obviously be accepted as being valid. Once the warrant was issued, whether Magadlela applied his mind properly in respect of the application for the warrant became irrelevant. That too is not an issue that I have to decide. The issue that I have to decide is a narrow one. It is whether Magadlela, when he was armed with the warrant, exercised his discretion to arrest properly. Before turning to a consideration of that issue, it is necessary to set out the law relating to arrests on the authority of a warrant.
Arrest on warrant: the law
[8] Section 38 of the Criminal Procedure Act 51 of 1977 provides for four methods of securing the attendance of an adult in court for purposes of his or her trial. They are arrest, summons, written notice and indictment. Section 39(1) provides that arrests may be made with or without a warrant and s 39(3) states that the effect of an arrest is that ‘the person arrested shall be in lawful custody’ and he or she ‘shall be detained in custody until he [or she] is lawfully discharged or released from custody’.
[9] Section 40 deals with the circumstances in which a peace officer may arrest without a warrant and need not be considered. Section 43 deals with warrants of arrest. It provides:
‘(1) Any magistrate or justice may issue a warrant for the arrest of any person upon the written application of an attorney-general, a public prosecutor or a commissioned officer of police-
(a) which sets out the offence alleged to have been committed;
(b) which alleges that such offence was committed within the area of jurisdiction of such magistrate or, in the case of a justice, within the area of jurisdiction of the magistrate within whose district or area application is made to the justice for such warrant, or where such offence was not committed within such area of jurisdiction, which alleges that the person in respect of whom the application is made, is known or is on reasonable grounds suspected to be within such area of jurisdiction; and
(c) which states that from information taken upon oath there is a reasonable suspicion that the person in respect of whom the warrant is applied for has committed the alleged offence.
(2) A warrant of arrest issued under this section shall direct that the person described in the warrant shall be arrested by a peace officer in respect of the offence set out in the warrant and that he be brought before a lower court in accordance with the provisions of section 50.
(3) A warrant of arrest may be issued on any day and shall remain in force until it is cancelled by the person who issued it or, if such person is not available, by any person with like authority, or until it is executed.’
[10] Section 44 concerns the execution of warrants of arrest. It states that a warrant issued in terms of s 43 ‘may be executed by a peace officer, and the peace officer executing such warrant shall do so in accordance with the terms thereof’.
[11] Section 50 deals with the procedure to be followed after a person has been arrested. Section 50(1) provides as follows:
‘(a) Any person who is arrested with or without warrant for allegedly committing an offence, or for any other reason, shall as soon as possible be brought to a police station or, in the case of an arrest by warrant, to any other place which is expressly mentioned in the warrant.
(b) A person who is in detention as contemplated in paragraph (a) shall, as soon as reasonably possible, be informed of his or her right to institute bail proceedings.
(c) Subject to paragraph (d), if such an arrested person is not released by reason that-
(i) no charge is to be brought against him or her; or
(ii) bail is not granted to him or her in terms of section 59 or 59A,
he or she shall be brought before a lower court as soon as reasonably possible, but not later than 48 hours after the arrest.’
[12] Even when a warrant of arrest has been issued a peace officer has a discretion as to whether or not to execute it. In Minister of Safety and Security v Sekhoto & another[1] Harms DP held that ‘[o]nce the jurisdictional facts for an arrest, whether in terms of any paragraph of s 40(1) or in terms of s 43, are present, a discretion arises’ and that the peace officer ‘is not obliged to effect an arrest’. And in Domingo v Minister of Safety and Security[2] Chetty J, in this court, held that the ‘trial court’s finding that, once armed with a warrant, the arrestor . . . was duty bound to arrest the plaintiff without further ado, was wrong and amounts to a clear misdirection’. The discretion to arrest or not obviously must be exercised properly.[3]
[13] In Sekhoto, Harms DP stated, in summary, that the discretion must be exercised ‘in good faith, rationally and not arbitrarily’.[4] Earlier in the judgment, however, he had surveyed both South African and foreign decisions, especially English cases, and had found that the discretion could be attacked on the basis of the grounds set out – and followed consistently for over a century – in Shidiack v Union Government (Minister of the Interior)[5] as well as on the further basis of irrationality.
[14] In Shidiack, Innes ACJ had held that the exercise of an administrative discretion was reviewable if, ‘for instance’, the repository of the power concerned ‘had acted mala fide or from ulterior and improper motives, if he had not applied his mind to the matter or exercised his discretion at all, or if he had disregarded the express provisions of a statute’.[6]
[15] The additional ground of irrationality stems from the Constitutional Court’s judgment in Pharmaceutical Manufacturers Association of SA & another; In re ex parte President of the Republic of South Africa & others [7] in which the court held:
‘[83] To the extent that Shidiack requires public officials to exercise their powers in good faith and in accordance with the other requirements mentioned by Innes ACJ, it is consistent with the foundational principle of the rule of law enshrined in our Constitution. The Constitution, however, requires more; it places further significant constraints upon the exercise of public power through the bill of rights and the founding principle enshrining the rule of law.
[84] . . .
[85] It is a requirement of the rule of law that the exercise of public power by the Executive and other functionaries should not be arbitrary. Decisions must be rationally related to the purpose for which the power was given, otherwise they are in effect arbitrary and inconsistent with this requirement. It follows that in order to pass constitutional scrutiny the exercise of public power by the Executive and other functionaries must, at least, comply with this requirement. If it does not, it falls short of the standards demanded by our Constitution for such action.
[86] The question whether a decision is rationally related to the purpose for which the power was given calls for an objective enquiry. Otherwise a decision that, viewed objectively, is in fact irrational, might pass muster simply because the person who took it mistakenly and in good faith believed it to be rational. Such a conclusion would place form above substance and undermine an important constitutional principle.’
[16] Harms DP equated the Shidiack grounds plus the constitutionally inspired irrationality ground as the equivalent of the Wednesbury principals in English law. In Associated Provincial Picture Houses Ltd v Wednesbury Corporation[8] Lord Greene MR had said of the grounds for reviewing an administrative decision:
‘It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word “unreasonable” in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably”. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short v Pool Corporation (1) gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.’
[17] The ‘failure to apply the mind’ formula has been fleshed out and given substance in a number of cases since Shidiack. In Johannesburg Stock Exchange & another v Witwatersrand Nigel Ltd & another[9] Corbett JA set out what was meant by a failure to apply the mind when he stated:
‘Broadly, in order to establish review grounds it must be shown that the president failed to apply his mind to the relevant issues in accordance with the “behests of the statute and the tenets of natural justice”. . . Such failure may be shown by proof, inter alia, that the decision was arrived at arbitrarily or capriciously or mala fide or as a result of unwarranted adherence to a fixed principle or in order to further an ulterior or improper purpose; or that the president misconceived the nature of the discretion conferred upon him and took into account irrelevant considerations or ignored relevant ones; or that the decision of the president was so grossly unreasonable as to warrant the inference that he had failed to apply his mind to the matter in the manner aforestated. . . Some of these grounds tend to overlap.’
[18] In Sekhoto, Harms DP made the point that the case law tends to suggest that the power to arrest is an administrative power. He expressed misgivings that this was indeed so but found it unnecessary to decide the issue. It is similarly unnecessary to decide it in this case because the basis of the attack on Magadlela’s exercise of discretion – that he ignored relevant considerations in the taking of the decision to arrest – is justiciable both in terms of the Promotion of Administrative Justice Act 3 of 2000 (the PAJA)[10] and in terms of the principle of legality that stems from the founding value of the rule of law[11] and so is the attack based on irrationality.[12]
[19] I turn now, having set out the legal principles that apply, to the issue I am called upon to decide, namely whether Magadlela exercised the discretion to arrest Weitz properly or improperly.
Magadlela’s exercise of discretion
[20] The question of how Magadlela exercised his discretion to arrest arises somewhat obliquely from the pleadings, but it was accepted by both Mr Mouton who, together with Ms Bands, appeared for Weitz, and Mr Zilwa, who appeared for the Minister of Safety and Security and Magadlela, that this was the true crux of the case. As a result, Magadlela’s reasons for executing the warrant were put to Weitz in cross-examination; Magadlela testified as to how he took the decision when he was led, and did so in relation to paragraph 11 of Weitz’s amended particulars of claim; and he was cross-examined on this at some length. As a result, even if it could be said not to have been raised properly in the pleadings, it was understood by the parties to have been an issue on the pleadings and it certainly was canvassed fully in the evidence. I am therefore in a position to deal with what is clearly the real issue in the trial.[13]
[21] The evidence of Magadlela is self-evidently of primary importance in determining the lawfulness of Weitz’s arrest. It is necessary to say something before proceeding further about his credibility and that of Weitz because both were criticised in argument. Both can be criticised in certain respects. While neither was a perfect witness, by and large the evidence upon which they can be criticised tended to be peripheral to the main issue I have to decide, and thus of no real moment. In any event, this is not one of those cases in which the credibility of the witnesses is of crucial importance.
[22] Before dealing with how Magadlela applied his mind it is, I believe, necessary to clear the way of three matters raised in argument by Mr Mouton.
[23] First, it was argued that Magadlela had acted under the dictation of the Provincial Commissioner. He denied this. There is no indication of him acting under dictation in the evidence. He is alleged to have said to Weitz’s attorney that he was under pressure from the Provincial Commissioner to bring the case to a conclusion. Even accepting that evidence and the references to the Provincial Commissioner in the investigation diary, they do not make out a case that Magadlela acted under dictation. Indeed, his evidence is emphatically to the contrary – that he took the decision himself. All the evidence may indicate is that the Provincial Commissioner took an interest in the matter and, given that it involved a senior policeman, that is neither surprising nor sinister.
[24] Secondly, it was argued that Magadlela had decided to arrest Weitz before he applied for the warrant and that this is an irregularity. Accepting that Magadlela did decide that arrest would be necessary before the warrant was issued, I cannot see the irregularity in a policeman in Magadlela’s position taking the view that if the warrant was issued he would execute it: the information upon which he had decided that an arrest was necessary was known to him well before he applied for the warrant and it would have been very strange indeed if he had held no view on this. To require him to stop and sit down, as it were, when he had received the warrant, and formalistically take a new decision to the unchanged facts once again is unrealistic and does not accord with the reality of how decisions are taken. Even though his evidence is equivocal as to when he took the decision, it seems to me to be clear that he was sure he would have to arrest Weitz because of the view he took of the matter and nothing changed after the issue of the warrant to make him reconsider his decision.
[25] Thirdly, the evidence does not support the argument that the arrest had been made for the improper purpose of forcing Weitz to take a transfer to Kirkwood. Magadlela stated that he had no knowledge of this issue at all.
[26] The true issues I have to decide are whether, when Magadlela took the decision to execute the warrant, he took into account relevant considerations and whether his decision was rational.
[27] His evidence was that from the statements in the docket he formed the view that Weitz would not obey a summons to appear: the events of 25 November 2008 had convinced him of this because Weitz had chosen to ignore the detention warrant – a court order – and had ordered that De Bruin be unshackled, apparently contrary to standing orders. (I say ‘apparently’ because from what I was informed of the standing order, it never having been placed before me, it applied to the restraining of prisoners while being transported and, in any event, De Bruin had to be unshackled from a fellow prisoner if he was to be sent back to court.) Weitz’s conduct, he said, showed a contempt for court orders and led him to believe that he would not obey a summons.
[28] 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.
[29] 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.
The order
[30] In the result, I make the following order.
(a) It is declared that the plaintiff’s arrest and detention from 09h55 on 30 June 2009 to 13h30 on 1 July 2009 were unlawful.
(b) The first and fourth defendants are jointly and severally liable to the plaintiff in respect of whatever damages he may in future prove.
(c) The first and fourth defendants are directed, jointly and severally, to pay the plaintiff’s costs, including the costs of two counsel, as well as interest at the legal rate from a date 14 days after taxation until date of payment.
_____________________
C Plasket
Judge of the High Court
APPEARANCES
Plaintiff: P Mouton and I Bands, instructed by G P van Rhyn Minnaar & Co Inc, Uitenhage and N N Dullabh & Co, Grahamstown
First and fourth defendants: P Zilwa, instructed by the State Attorney, Port Elizabeth and Netteltons, Grahamstown
[1] Minister of Safety and Security v Sekhoto & another 2011 (1) SACR 315 (SCA) para 28. See too Theobald v Minister of Safety and Security & others 2011 (1) SACR 379 (GSJ) para 310.
[2] Domingo v Minister of Safety and Security (CA429/2012) [2013] ZAECGHC 54 (5 June 2013) para 3.
[3] National Commissioner of Police & another v Coetzee 2013 (1) SACR 358 (SCA) para 14. See too Reynolds & another v Minister of Safety and Security 2011 (1) SACR 594 (SCA) para 24.
[4] Note 1, para 38.
[5] Shidiack v Union Government (Minister of the Interior) 1912 AD 642.
[6] At 651-652.
[7] Pharmaceutical Manufacturers Association of SA & another; In re ex parte President of the Republic of South Africa & others [2000] ZACC 1; 2000 (2) SA 674 (CC) para 86.
[8] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 1 KB 223 (CA) at 229.
[9] Johannesburg Stock Exchange & another v Witwatersrand Nigel Ltd & another 1988 (3) SA 132 (A) at 152A-E. (References in the passage quoted have been omitted.) See too Northwest Townships (Pty) Ltd v Administrator, Transvaal & another 1975 (4) SA 1 (T) at 8F-G.
[10] Section 6(2)(e)(iii).
[11] Democratic Alliance v President of the Republic of South Africa & others 2012 (1) SA 417 (SCA) para 112, confirmed in Democratic Alliance v President of the Republic of South Africa & others 2013 (1) SA 248 (CC).
[12] The PAJA, s 6(2)(f)(ii).
[13] Collen v Rietfontein Engineering Works 1948 (1) SA 413 (A) at 433; Middleton v Carr 1949 (2) SA 374 (A) at 385-386; Reynolds & another v Minister of Safety and Security (note 3) para 24.