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Gellman v Minister of Safety & Security (A3009/2007) [2007] ZAGPHC 269; 2008 (1) SACR 446 (W) (2 November 2007)

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IN THE HIGH COURT OF SOUTH AFRICA

( WITWATERSRAND LOCAL DIVISION)

CASE NO: A3009/2007

JOHANNESBURG

In the matter between:

NEIL HOWARD GELLMAN Appellant

and

MINISTER OF SAFETY & SECURITY Respondent

JUDGMENT

SALDULKER, J et LEVENBERG, AJ

i. SUMMARY OF THE FACTS

This is an appeal against a judgment of the Germiston Magistrate's Court dismissing the claim of the Appellant (Plaintiff in the Court a quo) for damages for wrongful arrest and imprisonment (i.e. “wrongful deprivation of liberty”) in an amount of R100 000,00.
The Appellant was admitted to practise as an attorney approximately 30 years ago. In recent years he has been more of a businessman than a practising attorney, although he has continued to practise law to a limited extent.
Among his various business ventures, the Appellant owns a factory that cuts granite for commercial purposes. The arrest that occasioned the present claim arose out of an altercation that the Appellant had with a worker at his factory, one Sigidi Thinawanga (“the complainant”). Her job consisted of cutting and polishing granite slabs.
According to the undisputed evidence of the Appellant, his staff (including the complainant) were paid on a commission only basis for work that they had done. On 17 February 2005, an altercation arose between the Appellant and the complainant concerning her pay for the previous day’s work. For purposes of this appeal, it is unimportant which of the parties was in the right.
It is common cause that, after the argument commenced, the complainant started smashing granite pieces in the Appellant’s factory. Although the complainant (who never testified at the trial) maintained in a Police statement that the Appellant had “given her” this granite, this seems highly improbable. It appears that any person reading the complainant’s statement would have inferred that, even on her own version, she was probably in the process of maliciously damaging the property of the Appellant.
The Appellant testified that, in addition to smashing granite, the complainant also smashed certain outside equipment and threatened to smash other sensitive electronic equipment of the Appellant.
According to the Appellant, the complainant also threw a slab of granite at him, which missed him by only a few centimetres. She then chased him into the factory with another slab of granite in her hand and the Appellant believed that she might throw it at him. The Appellant described these granite slabs as being heavy with four sharp points in each corner.
According to the Appellant, he drew a revolver from his pocket at that stage and pointed it at the complainant. He told her to “Go! Go!”. She then dropped the slab of granite she was carrying and left the factory.
Thereafter the complainant laid a complaint with the Police. The relevant portions of her statement, which was handed in as an exhibit at trial, are repeated below:

“3. On Thursday 2005-02-17 at about 10:45 I was at my work place working. There was a problem with the wheel of the machine that I used then I went to the manager’s office and tell him that the machine is not working and that he must come and check it. His name is Nel German the owner of the company.

4. After ten minutes he come out and started to insult me and went back to his office. He came back for the third time and check and then he called another lady to come and help to fix the machine but we end up failing to fix it.

5. Being lunch time, his personal assistant Linda came to me and tell that Nel German said that he will not pay me the money and she asked me what will I do if he do not pay me. I said I will leave the job if he don’t pay me and I will never come back.

6. When we report off duty Nel German came out of his office and count the money of all the workers and he said to me that he is not paying me but he did not tell me the reason why he is not paying me. I said to him that I’m going to take all the stones that worked for and he said there was no problem you can take all your work for today. I went to take the stone then he follow me and grab me by my clothes and he asked me what I am doing. I said you said I take all the work of today.I realised that I can not do any thing with the stones and I started to break them.

7. While I was breaking the stones he went back to his office and came back with a gun and he pointed at me and I run away screaming and stand out side the yard with two ladys (sic) who are also my co-workers. Then I sent Makhado Mavis to take my bag inside. Then Nel German said he is taking it. There was a cell phone ALCATEL 183 container that I used to carry my lunch valued at R580,00.

8. I did not give the right or permission to Mr Nel German to point at me with gun and taking my bag. I know the suspect very well and I desire further police investigation in this matter. ...”

[emphasis added]

This statement was made on 18 February 2005. Although the complainant made a subsequent statement after the Appellant’s arrest, the statement of 18 February 2005 was the only one before the police on the date of the Appellant’s arrest (which is more fully described below).
It is at once apparent on a review of the statement that:
1. Even on the complainant’s own version, she was smashing granite in the factory that was the property of the Appellant when he pointed the firearm at her.
2. The complainant’s version is contradictory and improbable. If the Appellant gave her permission to take the stones, it is hard to understand why immediately thereafter he “grabbed” her clothes and pointed a firearm at her.
3. There is no causal link between the pointing of the firearm and the fate of the complainant’s cellphone. The complainant simply left the cellphone behind when she ran out of the factory.
4. The statement that the Appellant refused Makhado Mavis’ request that he hand over the cellphone and handbag does not give rise to a reasonable suspicion that a theft had occurred. The Appellant’s reasons for not allowing Ms Mavis to take the handbag are unclear. He may simply have been unwilling to deliver the complainant’s property to a third party.
We note that the Respondent (the Defendant in the Court a quo) never called the complainant as a witness. Accordingly, the Appellant’s version of what occurred with the complainant is undisputed. We also find that the Appellant’s version, when read with the complainant’s statement seems probable.
On 21 February 2005, the Appellant received a telephone call from a certain Detective Inspector Dlamini. Inspector Dlamini is a policeman with twenty-five years of experience. The Inspector noted that he had received a complaint about the pointing of a firearm and requested the Appellant to come to the Police station to make a statement. According to the Appellant, the Appellant then testified (Record p44) that:

“I said listen, I am extremely busy right now and this case is a lot of rubbish. I said why do you not come here and you can see the place and I can make a statement, and I directed him. I told him where we are, gave him directions.”

There is some dispute as to precisely what was said during the course of this conversation between the Appellant and Inspector Dlamini.
According to Inspector Dlamini the Appellant admitted during the course of this conversation that he had pointed the firearm. During his testimony, the Appellant confirmed that he had made this admission, but also stated that he had advised Inspector Dlamini that he had acted in self defence. We do not believe that the resolution of this dispute is material to our decision in this matter.
Inspector Dlamini testified that (Record p174-175) that:

“I received a case docket which was allocated to me, that was on 21 February 2005. After receiving a docket I read the statement made by the complainant, by then the charge was written outside pointing of a firearm. I have undergone a course, a detective course and the people who are … the one who opened this case in the charge office is policeman (sic) he is a uniformed guy. … Then the charges I have stated that it is a pointing of a firearm but when I read in the statement and I discovered that the items also were taken, after a firearm had been used by pointing. Then when I see this case a weapon was used and some items were destroyed. To me as it appeared as an armed robbery charge. So the person who opened this case, he only concentrated only with the pointing of a firearm. Maybe it is a lack of knowledge, seeing that the items had also been taken, also the charge itself is armed robbery if a firearm has been used, pointing and remove somebody’s items, automatically it comes to an armed robbery.”

[emphasis added]

We find it astounding that a policeman of 25 years experience could bona fide have concluded, based solely on the statement made by the complainant, that this was a potential case of “armed robbery”.
We infer from Inspector Dlamini’s testimony that, after he had had an opportunity to review the statement, he embarked on a fanciful attempt to build up other serious charges against the Appellant. For example, at p186 of the Record he testified that –

“Whilst still there at the company then I requested Mr Gellman to hand me his firearm so that I must confiscate. He just ran into his office immediately and I was so surprised why he must run into his office but he is supposed to hand the firearm to me. I rushed after him. When he arrived in his office he took the firearm. It was hidden somewhere on the floor, and then he turned back to me. I was so surprised because the reason why I ran after him, I did not know what his intentions were. He might shoot me or whatever might happen. That is why I immediately ran after him. Immediately when he opened the door he took the firearm and I was very close to him and then I said Mr Gellman please can you hand the firearm to me. That is whereby now he handed the firearm to me. The reason behind that, I suspect, during the time when I requested the firearm from him, it was not in his possession. The reason of running quickly into his office I suspected that the firearm was placed negligently so that is why he tried to run fast in order that I must not see that the firearm was not kept in a safe. At a later stage I was supposed to open a charge against him but I did not open that charge of negligence, I was busy with all things and then I forgot later to open a negligence placing of a firearm.”

[emphasis added]

The explanation for Inspector Dlamini’s overzealous conduct appears from his own testimony concerning his initial telephone conversation with the Appellant. At p181 of the Record, the Inspector testified that:

“[The Appellant] was very much arrogant towards me and he was not interested to call to my office as he was always busy.”

[emphasis added]

Inspector Dlamini’s attitude towards the Appellant thereafter was unnecessarily and inexplicably hostile towards him.
We are not oblivious to the fact that Inspector Dlamini may also have been motivated by genuine empathy for the complainant and may have felt that the Appellant’s conduct was not that of a humane employer. He may also have found the Appellant to be abrasive. However, these are not factors which should influence a police officer in the manner in which he conducts an investigation and in determining whether or not to make an arrest.
Whatever the provocation, Inspector Dlamini’s approach in trying to build up as serious a dossier as he could against the Appellant, is not the type of professional conduct one is entitled to expect from a reasonable person in his position. It is particularly inappropriate in a senior and experienced policeman.
After his telephone conversation with the Appellant, Inspector Dlamini drove to the Appellant’s premises with another detective, Inspector Koetzer. It is significant that the Respondent never called Inspector Koetzer as a witness.
In a subsequent statement made by Inspector Koetzer, he confirmed that Inspector Dlamini had asked him to accompany him “om ‘n arrestasie uit te voer”. It is therefore apparent from Inspector Koetzer’s statement that Inspector Dlamini had formed the intention to arrest the Appellant, even before he went to the Appellant’s premises.
At that stage all that Inspector Dlamini had before him was the statement of the complainant and the Appellant’s admission that he had pointed a firearm at her. Inspector Dlamini states that the Appellant had also advised him on the telephone that the complainant was lucky that “he did not shoot her”. The Appellant disputes this. In any event, whether or not he said this, it does nothing to strengthen any “suspicion” that he might have pointed the firearm “without good reason” as contemplated by section 120(6)(a) of the Firearms Control Act, 60 of 2000 (“the Firearms Control Act”).
Inspectors Dlamini and Koetzer met with the Appellant at his factory premises as agreed. They requested the Appellant to attend at the police station to make a statement. He agreed. The Appellant then locked his factory (apparently with the workers inside) and drove in his own car to the police station. There he was arrested without a warrant.
He then asked the Police if he could go back to his premises to unlock the doors of the factory, send his workers home, and thereafter secure the factory premises. The police agreed. In the process the Appellant was paraded in handcuffs before his employees.
The Appellant requested Police bail at the time of his arrest. Notwithstanding that he had arrested the Appellant without a warrant, Inspector Dlamini advised the Appellant that he lacked the discretion to grant him police bail.
The Appellant was thereafter held in custody for a period slightly in excess of 48 hours with other prisoners who were potentially dangerous. He was subsequently released on R1 000 bail after an appearance in the Germiston Magistrate's Court.
The Appellant testified that, when he was held in the cells in the Germiston Magistrate's Court, a number of his colleagues (i.e. other attorneys) saw that he was being held in the cells and he suffered further humiliation.
The Appellant also testified that, during the period of his imprisonment, he did not have access to medication that he was “required to take for a heart condition”. In this respect, the Appellant testified that he had had a quadruple bypass before his arrest.
The Appellant stated that he suffered extreme stress because of the uncertainty of his position. Inspector Dlamini, with the same zeal that he had exhibited from the outset, had now added a charge of armed robbery to the list of offences. The Appellant feared that it might be a long time before he obtained bail. He was uncertain how he was going to manage his affairs whilst in prison and was concerned that his imprisonment might lead to his financial ruin.
Subsequently, after bail had been granted, the charges were withdrawn as the prosecutors “could not see the reasonable possibility of a successful prosecution” (Record p163).
The Respondent pleaded that the arrest of the Appellant was lawful in that he was “suspected on reasonable grounds” of having contravened section 120(6) of the Firearms Control Act by pointing a firearm “without good reason to do so”, and of having committed the crime of theft.
The Magistrate found that the arrest was lawful as the Appellant was “reasonably suspected of having committed an offence” as contemplated in the First Schedule to the Criminal Procedure Act, 51 of 1977 (“the Act”). Accordingly, the claim was dismissed with costs.
It is against this judgment that the Appellant now appeals.

II. THE APPELLANT’S APPLICATION FOR CONDONATION

The Appellant appeared pro per in both the Magistrate's Court and in the High Court.
The Respondent was represented in the appeal by Ms Sello. We are indebted to her for her very helpful and able heads of argument which were invaluable to us in resolving this appeal.
The Appellant timeously noted his appeal. However, he subsequently delayed significantly in prosecuting the appeal in that he failed to complete the preparation of the record timeously or to set the matter down for hearing.
The Appellant filed an application for condonation on 21 June 2007. Essentially, his grounds of condonation are as follows:
1. It was always his intention to prosecute the present appeal.
2. He was unaware that, after filing his notice of appeal, he was required to take subsequent steps within the required period of time.
3. He could not engage an attorney or counsel to represent him because he was in dire financial straits.
The Respondent opposed the application for condonation.
In addition to delay in the preparation of the record, the record prepared by the Appellant was incomplete. The Appellant subsequently delivered a copy of the pleadings and certain of the exhibits to the Presiding Judges’ clerks.
The Respondent did not ask that the appeal be struck off the roll on the ground that the record was incomplete and that the missing parts were delivered to the appeal Judges piecemeal at the eleventh hour.
While the Court has experienced some inconvenience as a consequence of the incompleteness of the record and the manner in which the record was delivered to us, we were nonetheless able to prepare ourselves to hear the appeal, as was the Respondent. We believe that it is in the interests of all of the parties that the appeal be disposed of now.
In relation to the application for condonation, we take into account the fact that the Appellant is himself an attorney by profession. However, it is apparent that he is significantly out of touch with the procedural requirements of litigation. This appears from: the testimony of the Appellant in the Court a quo; the manner in which he conducted his case before the Magistrate; and the manner in which he has presented his application for condonation and other documents in the case. It is also apparent to us that the Appellant’s financial woes as well as the fact that he was compelled to appear pro per (also due to his precarious financial position), have made it difficult for the Appellant to focus on his case with the desired objectivity.
In evaluating the application for condonation we also take into account the following:
1. The Respondent will suffer no prejudice if the appeal is dealt with on the merits.
2. For reasons which are more fully set forth below, the appeal is meritorious.
In all the circumstances, although we find the delay in prosecuting the appeal to be significant, we consider this an appropriate case for the grant of condonation.

iII. ANALYSIS OF THE LAW AND ITS APPLICATION TO THE FACTS OF THE PRESENT CASE

The Appellant claims that he was “unlawfully and maliciously or alternatively unlawfully and recklessly/negligently arrested” and thereafter imprisoned. The Appellant’s particulars of claim are sufficient, in the context of a Magistrate's Court proceeding, to articulate a cause of action based upon unlawful deprivation of liberty.
Neethling, Potgieter and Visser, Law of Delict, 5th ed. p304 states:

“As a form of iniuria, wrongful deprivation of liberty consists in a person being deprived of his physical freedom without justification. The existence of such deprivation must be judged objectively… The deprivation of liberty is in itself an independent infringement and in principle, therefore, constitutes an iniuria.

To succeed in an action based on wrongful deprivation of liberty, the plaintiff must prove that the defendant himself, or a person acting as his agent or servant, deprived him of his liberty …

As a rule every interference with physical liberty is wrongful in the absence of a ground of justification … On the other hand, a prima facie arrest (for example, in terms of a valid warrant) can be wrongful if the wrongdoer acted with improper motive; and such a motive is present if the arrest was executed with a purpose other than bringing the arrested person properly to trial.”

(See Tsose v Minister of Justice 1951 (3) SA 10 (A), 17; Duncan v Minister of Law & Order 1986 (2) SA 805 (A), 820.)

As appears from the above quoted passage, the delict with which we are here concerned is that of “wrongful deprivation of liberty”. An unlawful arrest is a deprivation of liberty. The imprisonment that follows after an unlawful arrest, is a continuation of the wrongful deprivation of liberty that was commenced by the unlawful arrest.
Every arrest and imprisonment is prima facie unlawful in the absence of a valid justification.
In the presence case, the arrest and imprisonment of the Appellant is not in dispute. The issue is whether the arrest and subsequent imprisonment was justified.
In Tsose v Minister of Justice 1951 (3) SA 10 (A) at p17, Schreiner JA held:

“Relying on what had apparently been intimated by De VilliersC.J. in Willemse and Others v Lategan 12 SC 335, Graham, J.P.said that:

‘The object of the arrest of an accused person is to ensure his attendance in Court in answer to a charge, and not to punish him for an offence of which he has not been convicted.’

The report of Willemse and Others v Lategan not contain the remarks on which Graham, J.P., relied … There is, however, no reason to doubt the correctness of the proposition stated by Graham, J.P., it is properly understood. If the object of the arrest, though professedly to bring the arrested person before the court, is really not such, but is to frighten or harass him and so induce him to act in a way desired by the arrestor, without his appearing in court, the arrest is, no doubt, unlawful. if the object of the arrestor is to bring the arrested person before the court in order that he may be prosecuted to conviction and so may be led to cease to contravene the law the arrest is not rendered illegal because the arrestor’s motive is to frighten or harass the arrested person into desisting from his illegal conduct. An arrest is not unlawful because the arrestor intends and states that he intends to go on arresting the arrested person until he stops contravening the law if the intention always is after arrest to bring the arrested person duly to prosecution. … An arrest is, of course, in general a harsher method of initiating a prosecution than citation by way of summons but if the circumstances exist which make it lawful under a statutory provision to arrest a person as a means of bringing him to courtsuch an arrest is not unlawful even if it is made because the arrestor believes that arrest will be more harassing than summons. For just as the best motive will not cure an otherwise illegal arrest, so the worst motive will not render an otherwise legal arrest illegal. …

What I have said must not be understood as conveying approval of the use of arrest where there is no urgency and the person to be charged has a fixed and known address; in such cases it is generally desirable that a summons should be used. But there is no rule of law that requires the milder method of bringing a person into court to be used whenever it would be equally effective.”

[emphasis added]

The Respondent maintains the Detective Inspector’s arrest of the Appellant was lawful. In asserting this position, the Respondent relies upon section 40(1) of the Act, which provides, inter alia, as follows:

“(1) A peace officer maywithout 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. …”

[emphasis added]

Section 43 of the Act provides for arrest pursuant to a warrant issued by a magistrate or “justice of the peace” as defined in the Act.
Section 54 of the Act provides for a less drastic means of procuring the attendance of an accused person in Court – the issue of a summons calling upon that person to appear in court on a specified date.
Schedule 1 to the Act lists various offences, including theft and:

“Any offence, except the offence of escaping from lawful custody in circumstances other than the circumstances referred to immediately hereunder, the punishment wherefore may be a period of imprisonment exceeding six months without the option of a fine.”

Section 120(6) provides:

“ (6) It is an offence to point –

(a) any firearm … whether or not it is loaded or capable of being discharged, at any person, without good reason to do so. …”

[emphasis added]

“39 (2) When interpreting any legislation … every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.”

We also note the recent view of the Supreme Court of Appeal as expressed by Nugent JA in Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA), 324 para [14] as follows:

“[14] I do not think the Courts in earlier cases placed less value on personal liberty than ought to be placed on it today. Indeed, what was said in Mayshows the contrary. Nor do I think there is any basis for concluding that awards that were made at that time reflect a more tolerant judicial view of incursions upon personal liberty. It was precisely because personal liberty has always been judicially valued that the incursions that were made upon it by the Legislature and the Executive at that time was so odious. The real import of the Constitution has not been to enhance the inherent value of liberty, which has been constant, they will be that it was systematically undermined, but rather to ensure that these incursions upon it will not recur.”

[emphasis added]

What the Supreme Court of Appeal appears to us to have articulated is that we have recently emerged from a time in which the legislature and the executive made “odious incursions” into the civil liberties of their subjects. While our Courts were, prior to the advent of the Constitution, bound to give effect to legislation even when it was destructive of liberty, section 39(2) of the Constitution now permits our Courts to ensure that all legislation is interpreted in such a way as “to ensure that those incursions upon [liberty] will not recur”, except in the circumstances in which the Constitution sanctions the deprivation of liberty.
We also take into account the fact that section 12 of the Constitution provides:

“12 (1) Every one has the right to freedom and security of the person, which includes the right –

(a) not to be deprived of freedom arbitrarily without just cause;

(b) not to be detained without trial; …”

Although section 35 of the Constitution expressly authorizes arrest, it constitutes a deprivation of the subject’s liberty without trial. It is therefore undesirable that it be resorted to, except where it is appropriate in order to ensure the ends of justice.
In Mabona & Another v Minister of Law and Order and Others 1988 (2) SA 654 (SE), 658, Jones J held:

“The test of whether a suspicion is reasonably entertained within the meaning of s 40(1)(b)is objective. Would a reasonable man in the second defendant’s position and possessed of the same information have considered that there were good and sufficient grounds for suspecting that the plaintiffs were guilty of conspiracy to commit robbery or possession of stolen property known to have been stolen? It seems to me that in evaluating his information a reasonable man would bear in mind that the section authorizes drastic police action. It authorizes an arrest on the strength of a suspicion and without the need to sue out a warrant, i.e. something which otherwise would be an invasion of private rights and personal liberty. The reasonable man would therefore analyse and assess the quality of the information at his disposal critically, and he will not accept it lightly or without checking it where it can be checked. It is only after an examination of this kind that he will allow himself to entertain the suspicion that will justify an arrest. This is not to say that the information at his disposal must be of sufficiently high quality and cogency to engender in him a conviction that the suspect is in fact guilty. This section requires suspicion but not certainty. However, the suspicion must be based upon solid grounds. Otherwise, it would be flighty or arbitrary, and not a reasonable suspicion.

The first consideration in weighing the reasonableness of the second defendant’s suspicion is that it is based solely on information he received from a secret informer. Every reasonable policeman knows that our courts regard the evidence of informers with caution. Informers are categorized with accomplices, quasi-accomplices and police traps as witnesses whose evidence must be subjected to the close and careful scrutiny before it is accepted at all unless it is corroborated.”

[emphasis added]

In the present case, Inspector Dlamini relied entirely on the unsatisfactory and somewhat ambivalent statement that he had obtained from the complainant, coupled with the Appellant’s admission that he had pointed the firearm at the complainant. On the face of it, the complainant’s version, should have appeared to any reasonable person (let alone a policeman with 25 years of experience) to be improbable, contradictory and unsatisfactory.

Apart from the inherent contradictions and improbabilities in her statement, it can be inferred from the complainant’s own statement that, at the time that the firearm was pointed at her, she was probably engaged in an act of malicious damage to the Appellant’s property. The Appellant would in such circumstances have had good reason to point the firearm at the complainant in order to cause her to desist from her conduct. It follows that there is nothing in the statement alone which would provide reasonable grounds to suspect the Appellant of a violation of section 120(6) of the Firearms Control Act.
We also cannot find in the statement reasonable grounds for suspecting the Appellant of having committed the crime of theft. The complainant simply left her possessions on the premises. There is nothing to suggest that property in her possession was removed from her without her consent or that the Appellant had any intention to deprive her of her property. There also does not appear to be any causal link between the pointing of the firearm and the complainant’s failure to retain control of her property.
The arresting officer plainly did not evaluate the very limited “evidence” at his disposal critically. Had he done so, it would have been immediately apparent to him that this was a complaint made by a disgruntled employee (however sympathetic her position may have seemed to him) engaged in a “domestic” dispute with her employer. The possibility that the employee was seeking to obtain leverage against the employer by making the complaint, or that she merely harboured a grievance against her employer for not having paid her, would have occurred to any reasonable person.
The Inspector made no attempt to supplement the unsatisfactory witness statement by seeking out independent corroborative evidence.
He appears to have made no reasonable enquiry as to whether there were grounds for suspecting the Appellant of having committed a Schedule 1 offence.
It is also noteworthy that, when the Inspector initially attended at the factory, he did not even ask the Appellant whether he had the cell phone in his possession or whether he would deliver it up to the Police or to the complainant.
In the circumstances we find that, on the evidence available to him, it was not reasonable for Inspector Dlamini to suspect the Appellant of having committed a Schedule 1 offence. The absence of reasonable grounds for his suspicion is borne out by the fact that no subsequent prosecution ensued.
There remains to be considered whether, in the absence of a concern that the Appellant would not attend his/her trial, a warrantless arrest is permissible.
Our own experience in these Courts indicates that the practice of effecting warrantless arrests on the strength of a sworn statement only is all too prevalent in our society. While there may be circumstances in which the Police are justified in effecting an arrest on the strength only of a witness statement, the Police should be circumspect in doing so.
They must consider whether the version set out in the witness statement appears to them to be probable. If no exigent circumstances exist, they should preferably seek corroborative evidence before making an arrest. An arrest is not a substitute for good police work.
We note that the Appellate Division, even before the enactment of our new constitutional dispensation, has held that the primary purpose of an arrest is to bring a person before the Court and not “to frighten or harass him. Where there is no urgency and the person to be charged has a fixed and known address”, it is generally desirable that the less intrusive method of summons should be adopted (Tsose, supra).
In addition, in maintaining that the Respondent was justified in effecting a warrantless arrest, the Respondent has failed to take adequate account of the presence of the word “may” in the preamble to section 40(1) of the Act. Even after a policeman forms a “reasonable suspicion”, he should nevertheless exercise a discretion in determining whether to: (i) effect a warrantless arrest; or (ii) to approach a Magistrate or Justice of the Peace to issue a warrant, or (iii) to issue a summons. In the absence of exigent circumstances, such as the risk of imminent flight, he should, at the very least, take the precaution of obtaining a warrant before effecting an arrest.
On the Respondent’s interpretation, a policeman always has the right to effect a warrantless arrest whenever there are reasonable grounds of suspicion. Such an interpretation would render section 43 of the Act nugatory and irrelevant. If a policeman is entitled to effect a warrantless arrest whenever he has reasonable grounds for suspicion, there would be no point in inserting a provision in the Act which contemplates the issue of a warrant. Plainly, a warrant would then be an inconvenience that most peace officers could shrug off whenever they chose to do so.
In the present case, even if the drastic method of arrest was necessary to procure the Appellant’s attendance at Court, there was simply no reason for the peace officer to effect a warrantless arrest. He should, at the very least, have followed the more conservative procedure of approaching a magistrate or justice of the peace to issue a warrant.
Such an approach could easily have been made without in any way warning the Appellant that he was about to be arrested.
It is also apparent that Inspector Dlamini had no basis for concluding that the Appellant’s attendance at Court could not be procured by the service of a summons upon him. Accordingly, he should, in exercising his discretion, have considered this less drastic method. Indeed, the SAPS’ standing order (G)341, issued under Consolidation Notice 15/1999 indicates that the standing orders of the Police express a preference for procuring the attendance of accused persons at trial by way of summons issued under section 54 of the Act, where possible.
In Louw and Another v Minister of Safety and Security and others 2006 (2) SACR 178 (T), 185, Bertelsmann J. held:

“An arrest is a drastic interference with the rights of the individual to freedom of movement and to dignity. 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 – Minister of Correctional Services v Tobani 2003 (5) SA 126 (E) …:

‘So fundamental is the right to personal liberty, the lawfulness or otherwise of a person’s detention must be objectively justifiable, regardless … even of whether or not he was aware of the wrongful nature of the detention.’

If an accused person or a suspect does not represent a danger to society, will in all probability stand his trial, will not abscond, will not harm himself and is not in danger of being harmed by others, and may be able and be keen to disprove the allegations against him or her, an arrest will ordinarily not be the appropriate way of ensuring the accused’s presence. …”

At p187:

“Before an arrest can lawfully be exercised, the reasonable suspicion that a Schedule 1 crime has been committed must be considered by a reasonable investigating officer, and it must be considered whether the suspect will attend the court hearing if summonsed or warned. Only if there are reasonable grounds to suspect that the suspect will abscond if an application for a warrant is first made may the power contained in s 40 of Act 51 of 1977 be exercised.

I do not believe that this places an undue burden on the police. It requires no more than an honest exercise of their duties. If they bona fidefear that a suspect will evade justice, then an arrest is obviously the correct option. But, by the same token, this test makes an arrest ultra vireswhen exercised against a suspect under circumstances where the suspect is perfectly willing to come to court on warning, on notice or summons.”

[emphasis added]

In an able argument, Ms Sello, relied upon an unreported decision in the Witwatersrand Local Division case of Charles v Minister of Safety and Security, Case No. 17499/2001. In that case, Goldblatt J rejected the judgment in Louw as wrong. The Court stated:

“The legislature, having granted a peace officer the right to make an arrest in the circumstances set out in section 40, has created a situation where due compliance with such section by a peace officer is lawful and affords such peace officer protection against an action for unlawful arrest. In my view, the Court has no right to impose further conditions on such persons. To do so would open a Pandora’s box where the courts would be called upon in cases of this type to have to enquire into what is reasonable in a variety of circumstances and further where peace officers would be called upon to make value judgments every time they effect an arrest in terms of section 40. These judgments which they have to make would later have to be considered and tested by judicial officers attempting to place themselves in the shoes of the arresting officer.

While section 40 exists in its present form, it offers protection to those who legitimately rely upon it. Obviously the position would be different if the action of the Police is mala fideor an abuse of the right given to him but I will not need to deal with the possible exceptions as they do not arise in the present case.”

We find ourselves unable to agree with the dictum in Charles. Warrantless arrests based upon a sworn complaint by a single witness have in our society have become all too common. Proving mala fides or abuse of rights after an arrest has been made is usually difficult.
Moreover, the decision in Charles does not take into account the fact that, in deciding whether or not there is a reasonable suspicion, a policeman must in any event exercise a value judgment which may be subjected to the scrutiny of the Court at a later date. Accordingly, requiring a peace officer to consider other factors before making a warrantless arrest, does not appear to us to be opening a “Pandora’s box” that is not already open.
The approach of the Court in Charles also does not consider the impact of the use of the word “may” in the preamble to section 40(1). In our opinion, the section imposes an additional obligation upon a policeman to exercise a proper discretion in determining whether or not to effect an arrest.
Along with our brother Bertelsmann J. (see Louw), we endorse the statement of Clive Plasket in his article “Controlling the discretion to arrest without a warrant through the Constitution” (Suid-Afrikaanse Tydskrif vir Strafregspleging (11) 1998 173 at p194) as follows:

“The fundamental rights to freedom and to justifiable administrative action have, by rendering the offending part of Tsose’s case redundant, placed the discretion to arrest on the same footing as the exercise of any other discretionary power. In the context of the high premium placed by the Constitution on the rights to human dignity and to freedom, that is important: the Courts are not provided with the means to protect these rights effectively (having failed to develop meaningful safeguards themselves), thus ensuring that the drastic power of arrest without warrant is controlled by the full spectrum of the principles of legality, procedural propriety and rationality. This is not as radical a departure as some may imagine; after all, the idea of justifiability, principally articulated through a duty to consider less drastic alternatives, is part of the police standing orders, which bind every police official in the exercise of his/her duties and functions. Despite this, there may be those who perhaps, in claiming to champion the war against crime, appear to believe that the police should be freed of legal constraints. No one would suggest that the level of crime in our country is not an extremely serious problem. It is obvious that decisive steps have to be taken to address the problem. On the legal level the answer lies in convicting and sentencing criminals and fair trials. For the police that means improving their capacity to detect crime and investigate offences. It goes without saying that this should be done within the framework of the Constitution. … The power to arrest plays a minor role in an endeavour to combat crime; it is merely a means, and only one of a number of means, to initiate the process of prosecution. An increase in the number of arrests may not be an indication that the war against crime has been won. It may instead be an indication that our constitutional rights and freedoms are being devalued.”

The Respondent contends that, in deciding Minister of Safety and Security v Van Niekerk (Constitutional Court Case No. 74/06), the Constitutional Court approved the reasoning in Charles’ case. We do not agree. We understand that the Constitutional Court expressly refrained from resolving the conflict between Louw and Charles.
To sum up, the approach of a peace officer in determining whether or not to make a warrantless arrest should preferably be as follows:
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.
2. In determining whether such reasonable grounds exist, the policeman should analyse the evidence at his disposal critically.
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.
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.
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.
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.
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.
We stress that the previous paragraph does not seek to lay down absolute rules. The police have a wide discretion in determining whether or not to effect a warrantless arrest. The factors set out above are simply guidelines for police officers in the field to take into account in exercising their discretion.
In laying down these guidelines we do not seek to be prescriptive. We recognise that our law enforcement agencies are under-resourced in the difficult campaign that they have to fight against the scourge of crime. However, the fight against crime will not be facilitated by arresting citizens who do not pose a serious threat to society and who are likely to appear at trial if summonsed. It will be won by diligent and competent police work.
In the circumstances we find that, even if there were reasonable grounds for suspecting the Appellant of committing a Schedule 1 offence, Inspector Dhlamini failed to exercise his discretion properly when he chose to effect a warrantless arrest. No circumstances existed that reasonably justified the drastic procedure that he followed. Probably the Appellant’s attendance could have been procured by the issue of a summons. However, at the very least the Police officer should have approached a Magistrate or Justice of the Peace to obtain a warrant before arresting the Appellant.
Accordingly, we find that the arrest and subsequent detention were unlawful. There is no dispute that the Defendant is vicariously liable for that wrongful deprivation of liberty.

iv. QUANTUM

There remains the issue of quantum. In his summons, the Appellant claimed payment of an amount of R100 000. In the Respondent’s supplementary heads of argument, the Respondent, after referring to a number of decided cases, indicated that, if the appeal succeeded, an award of “up to R60 000 might not be unreasonable.”
In support of the Respondent’s position, Ms Sello provided us with a thorough exposition of various decisions in which awards of damages were made for wrongful arrest.
In Minister of Safety and Security v Seymour (supra) at p324 para [16] the Supreme Court of Appeal held:

“[16] As pointed out by Botha AJ in AA Onderlinge Assuransie Assosiasie Beperk v Sodoms, it is generally undesirable to adhere slavishly to a consumer price index in adjusting earlier awards. But, provided that structure is borne in mind, it is useful as a general guide to the devaluation of money. In the cases that follow I have added (the value of the relevant award adjusted according to the indices in Koch).

[17] The assessment of awards of general damages with reference to awards made in previous cases is fraught with difficulty. The facts of a particular case need to be looked at as a whole and few cases are directly comparable. They are a useful guide to what other courts have considered to be appropriate but they have no higher value than that.”

In Seymour, the Supreme Court of Appeal reduced an award of general damages in an amount of R500 000,00 made by the Johannesburg High Court to R90 000,00. Mr Seymour was the managing director of a local co-operative who was wrongfully arrested. At para [21] the Court held:

“[21] In the present case Seymour was deprived of his liberty for five days. Throughout his detention at the police station he had free access to his family and medical adviser. He suffered no degradation beyond that that is inherent in being arrested and detained. After the first period of about 24 hours the remainder of the detention was in a hospital bed at the Rand Clinic.”

In the present case we find that the circumstances of the detention were worse than in Seymour’s case. The Appellant was held for a period of 48 hours in a prison cell with potentially dangerous prisoners. He was subject to various humiliations, not only before his employees, but also before his colleagues at the Germiston Magistrate's Court. Although the period of deprivation of liberty was less than in Seymour’s case, the period of his actual detention in prison was longer.
In all the circumstances, we consider that an appropriate award for general damages would be R80 000,00.
In addition, the Appellant has claimed an amount of R2 000,00, being the legal expenses he incurred in obtaining bail. We do not find this claim for legal fees to be excessive. Accordingly, we award the Appellant an additional R2 000,00 in special damages.

v. CONCLUSION

In the result, we find that the Appellant was wrongfully arrested and that he is entitled to damages in an aggregate amount of R82 000,00.
This award should bear interest from the date of demand, being the date of service of the summons upon the Respondent. As we are unable to determine from the Record the date upon which the summons was served on the Appellant, we have allowed interest from the date upon which notice of intention to defend was filed with the Court, being 17 May 2005.
Accordingly, we make the following order:

1. The appeal is upheld.

2. The Respondent is to pay the Appellant’s costs in connection with the appeal (such costs to exclude the costs of the condonation application).

3. The order of the Magistrate in the Court below is set aside and the following order is substituted:

(1) The Respondent is ordered to pay to the Appellant damages in an amount of R82 000,00.

(2) The amount of R82 000,00 is to bear interest at the rate of 15,5% from 17 May 2005 to date of payment.

(3) The Respondent is to pay the Appellant’s costs incurred in the action.

_____________________________

P.N. LEVENBERG, AJ

ACTING JUDGE OF THE HIGH COURT

_______________________________

SALDULKER, J

JUDGE OF THE HIGH COURT

Appellant appeared pro per.

Counsel for the Respondent: M Sello

Instructed by: The State Attorney

Date of Hearing: 23 August 2007

Date of Judgment: 2 November 2007