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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG LOCAL DIVISION, JOHANNESBURG)

CASE NO: 28556/2012

DATE: 19 DECEMBER 2014

NO REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

In the matter between:

MUPUNDU GODFROID.......................................................................................PLAINTIFF

and

THE MINISTER OF SAFETY & SECURITY...............................................DEFENDANT

JUDGMENT

KUBUSHI, J

INTRODUCTION

[1] The plaintiffs claim against the defendant is for personal injury damages emanating from his arrest and subsequent detention by employees of the defendant who were at all material times acting within the course and scope of their duty or in the defendant’s interest.

[2] The plaintiff avers that on 8 March 2012 he was arrested by members of the South African Police Service and subsequently detained on a charge of malicious damage to property. He has as a result thereof approached this court for a claim for damages. The plaintiff did not know the full particulars of the police officers who arrested him but could remember one of them being Mnisi. As per his particulars of claim, the plaintiffs claim is based on malicious arrest alternatively arrest without a warrant.

[3] The defendant is defending the case and in his plea admits that the plaintiff was arrested without a warrant but specifically pleads that the arrest was lawful in that it was in accordance with the provisions of s 40 of the Criminal Procedure Act 51 of 1977 (the Act) which provides inter alia that a police officer can arrest without a warrant on reasonable suspicion that a crime has been committed.

[4] At the pre-trial conference held on 24 April 2013, the parties agreed that the plaintiff will be the first to tender evidence and that as the pleadings stood, the defendant bears the onus of proof. As such the plaintiff gave evidence first and called two witnesses, Celeste Botha (Botha) and Joey Bloem (Bloem) to testify on his behalf. The defendant in its defence led the evidence of three witnesses, namely, Warrant Officer Mnisi (Mnisi), Blessing Cebisa (Cebisa) and Warrant Officer Mandla Ndlozi (Ndlozi).

[5] Counsel provided me with heads of argument before they could address me in argument. I am thankful for the extensive manner in which both counsel dealt with the issues in their heads of argument.

FACTUAL BACKGROUND

[6] The evidence before me is that the plaintiff, Godfroid Mupundu an immigrant from the Democratic Republic of Congo was arrested and detained by members of the South African Police Service. The plaintiff came to South Africa as an asylum seeker and at the time of his arrest he had been in South Africa since 2008. When he was arrested, he was employed, and at the time of giving evidence was still employed, at Aero General Management Property as a supervisor and caretaker. He was initially employed as a security guard but was subsequently promoted to his current position. His job entails the supervision of various residential buildings of his employer, one of them being Roxey Court, and also taking care of the building where he stays. The incident which led to his arrest occurred at Roxey Court which is situated at Voortrekker 10 Germiston. As the supervisor of this building all the employees working there report to him in respect of the occurrences at the building. He in turn reports to Mr Jan Labuschagne who reports to Mr Shappcort. This building, according to the plaintiff, was at the time in question owned by Mr Joe Lima also known as Joseph, a fact which is in dispute.

[7] The cause of the whole furore emanated from a dispute between the occupants of the Roxey Court (the occupants) and its alleged owner. Prior to the incident, there was a standoff between the occupants and the plaintiff's bosses wherein the occupants refused to pay rent alleging that the building belonged to them. The alleged owner of the building reported the standoff to the Department of Housing. There is a dispute as to whether the impasse was eventually resolved or not. The occupants maintain that the impasse was resolved in their favour whilst the plaintiff contends that the standoff was not resolved. Be as it may, on the strength of their contention that the Department of Housing ruled that the building belonged to them, the occupants decided to act. They renovated the building changing the security systems that the alleged owner had put in place. They put their own security gate and security guards. They also secured the electricity meter boxes. On 1^st March 2012 an incident, the details of which are also in dispute, happened at Roxey Court which caused the police to be called to come and resolve the rumpus, and which resulted in some of the occupants laying a charge of malicious damage to property against the plaintiff and some of the employees of Aero. On 8 March 2012, some of the occupants, in particular Cebisa and Norex went to the Germiston Police Station to check progress on the case. At the police station they were assisted by Mnisi who ended up arresting the plaintiff.

THE APPLICABLE LAW

[8] The plaintiffs claim in paragraph 6 of his particulars of claim is couched as follows:

“On or about Sunday, 8 March 2012 at or about 13hOO at or near Knox Street, Germiston, the plaintiff was arrested maliciously, alternatively without a warrant by police officers, whose full and further particulars are unknown to the plaintiff, but one of whom may apparently be known as Mnisi." (my emphasis)

[9] Arrest without a warrant is wrongful or unlawful or illegal in that it is without the due process of the law. Therefore the plaintiff's claim in respect of the arrest without a warrant is based on what in our law is referred to as wrongful or unlawful arrest.

[10] Claims in respect of malicious arrest and in respect of wrongful arrest are based on the actio injuriarum and in both instances the animus injuriandi or dolus is an essential element thereof. There is, however, an absolute rigid distinction between the two delicts which distinction is succinctly enunciated in Thompson & Another v Minister of Police & Another¹ ,as follows:

10.1 In the case of wrongful arrest the intention is said to be direct - dolus directus - as it is done with the definite object of hurting the defendant in his or her person, dignity or reputation. The arrest itself is prima facie such an odious interference with the liberty of a citizen that animus injuriandi is thereby presumed and no allegation of actual subjective animus injuriandi is necessary. In such an action the plaintiff need only prove the arrest itself and the onus will then lie on the person responsible to establish that it was legally justified. The delict in such a case is committed by the illegal arrest of the plaintiff without due process of the law. The injury lies in the arrest without justification, and the cause of action arises as soon as that illegal arrest has been made.

10.2 In the case of malicious arrest the intention to injure is indirect - dolus indirectus - as the action of the defendant in instigating the arrest or setting the wheels of the criminal law in motion is done as a means for effecting another object, namely, the arrest of the plaintiff, the consequences of which act the defendant is aware will necessarily be to hurt the plaintiff in regard to the person, dignity or reputation. The action only arises after the criminal proceedings against the plaintiff have terminated in his or her favour or where the Director Public Prosecutions declined to prosecute. The proceedings from arrest to acquittal must be continuous, and no action for personal injury done to the accused person will arise until the prosecution has been determined by his or her discharge.

MALICIOUS ARREST

[11] In a claim based on malicious arrest it has been held that it is essential for the plaintiff to allege and prove that the defendant acted maliciously and without reasonable and probable cause. Thompson & Another v Minister of Police & Another above².

[12] An arrest is not malicious merely because it is done for an improper purpose. It is malicious if in addition, reasonable and probable grounds for the arrest are absent. It is therefore imperative that the plaintiff should in his or her particulars of claim allege that there was no reasonable or probable cause for his or her arrest. Failure to do so renders the claim fatally flawed.

[13] In this instance, the plaintiff in his particulars of claim, as appears in paragraph [8] of this judgment, only alleged that he was ‘arrested maliciously’. He failed to allege that there were no reasonable and probable grounds for the arrest. The evidence led by the plaintiff does not also establish malice and/or that there was no reasonable and probable cause for the arrest. Consequently the plaintiffs claim based on malicious arrest cannot stand.

[14] However, the fact that the plaintiffs claim for malicious arrest was dealt a fatal blow does not preclude him from proceeding with his alternative claim based on wrongful arrest.

AMENDMENT OF THE PARTICULARS OF CLAIM

[15] Before I deal with the plaintiffs claim for unlawful arrest, I want to pause here and deal with the purported amendment to the particulars of claim.

[16] On 21 October 2013, the plaintiff filed and served a notice of intention to amend his particulars of claim by inserting paragraph 7A. The inserted paragraph 7A was meant to read as follows:

“7A.1 the police officers involved in the purported investigation of the matter against the plaintiff;

7A.2 knew, alternatively ought to have known, that no reasonable or objective grounds or justification existed for either arrest of the plaintiff or his subsequent and continued detention;

7A.3 could have easily ascertained by the taking of reasonable investigative steps that no such grounds or justification existed, but failed to take any such steps;

7A.4 failed in his/her duty of care to inform the relevant public prosecutor/s dealing with the matter that they were no such grounds or justification and indeed no objective facts reasonably linking the plaintiff to the alleged crime of malicious injury to property;

7A.5 failed to take any steps whatsoever to ensure that the plaintiff was released from detention as soon as possible."

[17] In terms of the said notice to amend the defendant was placed on terms to deliver a written objection within 10 days of receipt of the notice. The notice further informed the defendant that if such objection is not delivered within the stipulated time the amendment will be effected. It is not apparent from the reading of the record that the defendant objected to the proposed amendment. Due to the fact that the objection does not form part of the evidence before me, I have to infer that the defendant failed to deliver the objection. Uniform rule 28 (5) provides that if no objection is delivered as contemplated, every party who received the proposed amendment shall be deemed to have consented to the amendment and the party who proposed the amendment may, within 10 days of the expiration of the period mentioned in the notice effect the amendment. Such amendment shall, in terms of sub-rule 28 (7), be effected by delivering each relevant page in its amended form.

[18] From the reading of the record, it does not appear that the plaintiff effected the amendment in the manner prescribed in the sub-rule. There being no such amendment forming part of the record, I also have to infer that the amendment was not effected. Therefore, the proposed amendment cannot be regarded as effected or the particulars of claim cannot be regarded as having been amended. An amendment would only take effect when the steps prescribed in the sub-rule have been taken within the applicable time limit. See Erasmus: Superior Court Practice ³.

[19] In the ultimate the claim which the defendant was called to meet was as stated in paragraph [8] of this judgment, namely, that ‘the plaintiff was arrested without a warrant by police officers, whose full and further particulars are unknown to the plaintiff, but one of whom may apparently be known as Mnisi.’ This is the case which the defendant was called to meet, nothing more nothing less.

WRONGFUL ARREST

[20] It is trite law that any deprivation of freedom of a person is regarded as prima facie unlawful unless justified. The burden of proof thus rests on the arrestor to justify such arrest. Where there are insufficient reasons to justify the arrest, the arrest will be wrongful and this would render the state liable to be sued for damages Incurred as a result of the unlawful arrest. See Minister of Law & Order u Hurley⁴ and Ratehwa v Minister of Safety & Security⁵.

[21] In justifying the plaintiffs arrest, in this instance, the defendant in paragraph 6 of the plea raised the following defence:

“Save to admit that on the 8^th of March 2012 the Plaintiff was arrested without a warrant by members of the SAPS, remainder of the allegations contained herein are denied and the Plaintiff is put to the proof thereof.

The Defendant pleads that the arrest was lawful in that it was in accordance with the provisions of Section 40 of the Criminal Procedure Act which provides inter alia that a police officer can arrest without a warrant on reasonable suspicion that a crime has been committed."

[22] S 40 of the Act provides for a number of different instances where a peace officer may effect an arrest without a warrant. From the reading of the defendant’s plea in paragraph [21] of this judgment, it is clear that the defendant relies on subsection 40 (1) (b) of the Act for the justification of the plaintiffs arrest. In terms of this subsection a peace officer may arrest without warrant any person whom he or she reasonably suspects of having committed an offence referred to in Schedule 1 of the Act, other than the offence of escaping from lawful custody.

[23] The following jurisdictional facts must be present for a peace officer to rely on the defence created by s 40 (1) (b) of the Act, in cases where it is alleged that the arrest was unlawful: (i) the arrestor must be a peace officer; (ii) the arrestor must entertain suspicion; (iii) the suspicion must be that the suspect committed an offence in Schedule 1; and (iv) the suspicion must rest on reasonable grounds. See Duncan u Minister of Law & Order⁶ and Minister of Safety & Security v Sekhoto & Another⁷.

[24] The parties were common cause, in this instance, that the plaintiff was arrested without a warrant by a peace officer. They were also common cause that the offence of which the plaintiff was alleged to have committed, namely, malicious damage to property, falls under Schedule 1. What remained in issue, which this court has to determine, is whether the peace officer entertained a suspicion that the plaintiff committed an offence in Schedule 1 and whether such suspicion rested on reasonable grounds.

[25] It is trite that the test to be applied in order to determine whether there was in fact reasonable suspicion justifying the arrest without warrant, is objective, and, therefore the arresting officer must have had reasonable grounds for the suspicion immediately prior to the arrest. See Duncan v Minister of Law & Order above⁸

[26] To my mind, the evidence of the plaintiff, save his denial of having committed the offence, and that of the other witnesses, which in effect deals only with all that happened after the arrest, is not relevant as regards the question whether a reasonable suspicion existed justifying his arrest The information to be taken into account should only be that which was within the knowledge of Mnisi, as the arresting officer, immediately prior to the arrest. No information obtained subsequent to the arrest should be considered. The enquiry here should be, objectively speaking, what information Mnisi had at his disposal when he made the arrest and did that information objectively speaking, empower him to arrest and further detain the arrestee as he did. In the final analysis the question ought to be would a reasonable police officer with the same information which was within the knowledge of Mnisi at the time of arrest have arrested the plaintiff?

[27] I also considered the unchallenged evidence of Cebisa in so far as it corroborated that of Mnisi that Cebisa together with one Norex are the ones who instigated the arrest and that he (Mnisi) interviewed Cebisa and Norex after reading the statements in the docket.

[28] According to the evidence of Mnisi, the arresting officer in this instance, on the day in question he was deployed in the Client Service Centre (CSC) at the Germiston Police Station. A complainant by the name of Blessing Cebisa arrived in the company of one Norex. Cebisa informed him that he (Cebisa) has opened a case of malicious damage to property and Cebisa further informed him that he (Cebisa) saw the suspects, involved in the case, earlier on in the streets in Germiston. Cebisa gave him a case number, namely case number 295/3/2012, as proof that the case was reported. The case number was verified and confirmed by the data typist at the CSC. He pulled out the docket and read the statements in the docket. The statements in the docket informed him about a case of malicious damage to property which the complainant, Cebisa had opened. He interviewed Cebisa and Norex to ascertain the veracity of the statements in the docket. He then left together with a colleague and in the company of Norex and Cebisa to arrest the suspects. The plaintiff was pointed out to him by Cebisa as one of the suspects. He approached the plaintiff and informed him that he was arresting him (the plaintiff) for the offence of malicious damage to property. Before arresting the plaintiff he read him his Constitutional rights. The two latter allegations are challenged by the plaintiff.

[29] From Mnisi’s testimony it could be ascertained that the following information was at his disposal when he made the arrest: a case number given to him by Cebisa, verified and confirmed by the data typist; a docket with the same case number which showed him that Cebisa opened a case of malicious damage to property; the statements in the docket informed him that there was a case of malicious damage to property; the interview with Cebisa and Norex confirmed the allegation and the plaintiff was pointed out to him by Cebisa.

[30] Did the above information, objectively speaking, empower Mnisi to arrest and further detain the plaintiff as he did? In my view, the answer is yes. It must be kept in mind that subsection 40 (1) (b) of the Act does not require certainty, the police officer need only harbour a suspicion of the offence having been committed. A suspicion inherently involves an absence of certainty or adequate proof. A suspicion can be reasonable despite there being insufficient evidence for a prima facie case. The arresting officer is entitled to consider all the information, even based on hearsay, and does not have to be convinced that there was in fact evidence proving the guilt of the arrestee beyond reasonable doubt. It was therefore not expected of Mnisi to satisfy himself to the same extent as a court would.

[31] The plaintiffs counsel pointed in his heads of argument to the possible improbability or unreliability of certain allegations, and discrepancies in the statements in the docket, with the aim of showing that the decision to arrest was exercised unreasonably. The line of attack is in my view misconceived. It has been said that while an arresting officer may be expected to assess the information at his or her disposal critically before arriving at a reasonable suspicion, it would be wrong to demand an evaluation and determination of the balance of probabilities. A suspicion by its nature arises early in an investigation; it precedes proof and may even be less than a prima facie case. It is thus for the court to weigh the probabilities, not the arresting officer.

[32] Consequently it is my opinion that the facts at the disposal of Mnisi gave rise to a credible suspicion that the plaintiff may have committed an offence of malicious damage to property. Those facts were sufficiently reasonable and as such the arrest of the plaintiff was on that basis lawful.

[33] To give power to arrest on reasonable suspicion does not mean that such power should always or ordinarily be exercised. Discretion to exercise such power must first be exercised. That is, once the jurisdictional facts for an arrest in terms of section 40(1) (b) are present, the discretion whether or not to arrest arises. No doubt the discretion must be properly exercised. It is thus a general requirement of the rule of law that any discretion must be exercised in good faith, rationally and not arbitrary.

[34] The plaintiffs counsel in his heads of argument correctly submitted that once the jurisdictional facts are present the discretion to arrest or not arises. However, his argument that followed thereafter was flawed simply because firstly, he indicated a lack? of appreciation that an improper exercise of discretion had not been pleaded or adequately ventilated in the evidence before me; secondly, the question to be considered is not whether Mnisi “considered and applied his discretion in establishing a reasonable suspicion” but rather whether objectively there existed a suspicion that a Schedule 1 offence was committed and whether that suspicion rested on reasonable grounds. In this regard the plaintiff, rather his legal representative fell into the pitfall which many a legal representative commonly fall in cases of this nature, that is, he conflated the issues of discretion with the jurisdictional requirement for a lawful arrest.

[35] It is indeed so that a police officer must analyse the evidence at his or her disposal critically before arresting a suspect. That exercise will always involve weighing incriminating and exculpatory facts against each other. But the rationality of that exercise usually will be a matter related to the arresting officer’s discretion. The existence or otherwise of reasonable grounds for a suspicion that a serious offence has been committed should, on the other hand, be determined objectively, regard being had to the evidence reasonably at the disposal of the officer at the time before he or she makes the arrest.

[36] Accordingly, the argument by the plaintiffs counsel that Mnisi did not exercise his discretion properly, in that he failed to obtain a statement from the plaintiff which could have been enough explanation not to arrest him; or failed to make enquiries as to the ownership of the property; or to determine whether the offence complained of was indeed an offence of malicious damage to property; or whether such offence was trivial to can effect arrest, is to me prima facie issues related to the exercise of the discretion to arrest and detain, and not the jurisdictional enquiry into the existence of reasonable grounds for the initial arrest. Sight should, however, not be lost that if it is accepted for the purpose of argument that such information could be included in the factual substratum to be assessed when weighing the reasonableness of the suspicion, the fact of the matter is that the evidence was not reasonably at the disposal of the arresting officer at the time of arrest. Mnisi did not investigate and as such that information was not available to him to consider. Even if such information was available, that is, if Mnisi had made the enquiries as the plaintiff's counsel seeks to suggest, at the end of the day such information would have become an issue related to the exercise of the discretion whether to arrest the plaintiff or not.

[37] This would also have been the situation in respect of the Judges’ Rules and the Standing Orders which according to the plaintiff’s counsel, Mnisi ought to have taken into consideration before effecting the arrest. The Judges’ Rules are obviously some of the tools put in place to guide an officer in carrying out his or her duties. A peace officer intending to arrest a person should be apprised of the information contained in those prescripts and where necessary apply it. But such information will only come into play when the issue of whether to arrest or not is being considered. It is common cause that Mnisi during his testimony showed the lack of appreciation of what was in the Standing Orders and/or the Judges' Rules. The result is that at the time of arrest Mnisi did not have, at his disposal, the information contained in the Judges’ Rules and/or the Standing Orders, which ought to have assisted him to properly exercise his discretion whether or not to arrest the plaintiff. In any event should such information have been within his knowledge it would have related to the issue of the exercise of his discretion.

[38] Litigants are bound by the Rules of court, specifically in regards to what should be averred and canvassed in pleadings. The cardinal rule is that a party is bound by what is addressed in the pleadings. A defendant is entitled to be informed of what the plaintiffs case is. It cannot be expected of a defendant to deal in a plea or in evidence with unsubstantiated averments without specific facts on which they are based being stated. A defendant could also not be expected to deal with a claim, as in this case, in which no averment is made, save a general one that the arrest was without a warrant. That is precisely the purpose of pleadings!

[39] The submission by the plaintiffs counsel that there were various issues which he thought Mnisi should have considered and/or done before effecting arrest and which affected his proper exercise of discretion is in my view without substance. The general rule is that a party who attacks the exercise of discretion where the jurisdictional facts are present bears the onus of proof. It was thus expected of the plaintiff to have raised the issue of whether or not Mnisi exercised his discretion properly in his particulars of claim. It is apparent from the plaintiffs particulars of claim that the plaintiff failed to allege that Mnisi exercised his discretion in an improper, unlawful, irrational or arbitrary manner. As such this was never an issue between the parties.

[40] The essence of the claim pleaded is that the jurisdictional facts for an arrest were not present because Mnisi arrested the plaintiff when he had no cause to do so, and as such the arrest was unlawful. Therefore, the case the defendant was called to meet was that the suspicion entertained by Mnisi that the plaintiff had committed malicious damage to property was not justified and not that the discretion to arrest was improper.

[41] Consequently, to the extent that the plaintiffs counsel argued that the discretion was exercised improperly, the argument can be disposed of, as in the Sehhoto -judgment above, on the simple basis that the proper exercise of the peace officer’s discretion was never pleaded as an issue between the parties. The plaintiff, who had to raise it either in the summons or in replication, failed to do so.

[42] It is trite that the decision to arrest must be based on the intention to bring the arrested person to justice. The contention by the plaintiffs counsel that the plaintiff was arrested not with the purpose to bring him to justice but was arrested because he is a foreigner does not take the plaintiffs case any further. It has been said that just as the best motive will not cure an otherwise illegal arrest so the worst motive will not render an otherwise legal arrest illegal. In any event this allegation was also not pleaded.

UNLAWFUL DETENTION

[43] It is common cause that the claim for unlawful detention was not particularised in the particulars of claim and it does therefore not stand to be entertained by this court. Even though the unlawful detention was not pleaded, from the reading of the particulars of claim the unlawfulness of the detention would have flowed from the alleged unlawful arrest. It will thus follow that if the arrest itself was in fact lawful, as is the case here, then the detention, per se, cannot be unlawful. The plaintiffs further reliance, for unlawful detention, on the allegations that Mnisi failed to inform the plaintiff of his (the plaintiff) Constitutional rights before arrest and at the time when the arrest statement was taken; or to bring the plaintiff to court within 12 hours of his arrest; or to arrange for the plaintiffs early release; or to ensure that the court releases the plaintiff on bail at his first appearance, are in my view, totally separate and new causes of action which should be specifically pleaded. This, in my opinion amounted to trial by ambush! To my mind the plaintiffs counsel did not sufficiently keep in mind the purpose of arrest and the limited role of the arresting officer.

[44] Another submission by the plaintiffs counsel is that the failure by Mnisi to inform the plaintiff of the causes of his arrest at the time of effecting the arrest rendered the subsequent detention of the plaintiff unlawful. As already stated the plaintiff in his claim relies only on arrest without a warrant as such this submission is also flawed in that it was not averred in the plaintiffs particulars of claim.

[45] Actually it was not necessary for me to deliberate on the submissions raised by the plaintiffs counsel as I have done in this judgement, for, once the four jurisdictional facts required for a defence under s 40 (1) (b) of the Act were established, the applicant’s claim for unlawful arrest had to be dismissed.

[46] The issue of assault was raised during argument. I am, however, of the view that this issue was not raised in the plaintiffs particulars of claim per se for determination. The assault was only raised in aggravation of the claims of unlawful arrest and detention. Since I have dismissed those claims, the claim for assault does not arise.

COSTS

[46] The defendant is the successful party and is thus entitled to costs of suit.

ORDER

[46] Consequently the plaintiffs claim is dismissed with costs.

KUBUSHI E.M.

JUDGE OF THE HIGH COURT

APPEARANCES:

HEARD ON THE: 03 DECEMBER 2014

DATE OP JUDGMENT: 19 DECEMBER 2014

PLAINTIFF'S COUNSEL : ADV G E KERR-PHILLIPS

PLAINTIFF'S ATTORNEY : WITS LAW CLINIC

DEFENDANT'S COUNSEL : ADV M W DLAMINI

DEFENDANT'S ATTORNEY : STATE ATTORNEY PRETORIA

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