IN THE HIGH COURT OF SOUTH AFRICA 
(NORTH GAUTENG HIGH COURT, PRETORIA)

Case no: A1174/2006

In the matter between:

And
THE MINISTER OF SAFETY AND

JUDGMENT

POSWA, J
David Vusi Maluleka, on 14 December 2005. It is common cause that Constable Maluleka arrested the appellant at the Sinoville Police Station, at about 18:20. It was also common cause during the hearing that the respondent bore the 

[4] I now deal with the facts of the case. The entire purpose of the special duties operations on that occasion was for the police to arrest persons suspected of committing petty crimes, such as urinating in public, drinking in public, gambling in public and being drunk in public. Justification for the arrest of these petty offenders is given by Constable Maluleka as follows:

It will be observed that "arrest" of petty offenders was part of the modus operandi of the police team in pursuit of their main mission, control of commission of serious crimes. There is no mention of wanting to bring those arrested for "petty crimes" before courts, for trial.

(a)	whether the appellant and Mr Motlau consumed liquor at the shopping centre or anywhere else prior to the arrival of the police;
(b)	whether the appellant and Mr Motlau were drunk at the time of the arrival of the police, during Mr Motlau's arrest at the shopping centre and;
(c)	what transpired on the appellant's arrival at the police station, after Mr Motlau had been conveyed thereto by the police.
[7] Although it is the respondent's version that Constable Maluleka was one of many police officials at the shopping centre when Mr Motlau was arrested, the defendant chose to rely on the evidence of only Constable Maluleka, for reasons unexplained. On his part, the plaintiff relied on his own evidence and that of Mr Motlau.

THE LAW
[12] Quite clearly, the answer as to which of the two submissions is correct will be found in the applicable law with regard to arrest without a warrant. Section 40 of the Criminal Procedure Act 51 of 1977 ("the Act") authorises a peace officer to effect an arrest without a warrant, if a person, commits an offence in his or her presence if the peace officer has a reasonable suspicion that an offence referred to in Schedule I has been committed (s 40 (1) (a)). Arrest without a warrant is an area of extreme conflict in various courts in the country, especially in this Division, the TPD and the WLD. Before dealing with some of the relevant cases, I shall, briefly, set out the background and facts in the context whereof this case must in, my view, be discussed.
Facts

[14] If the respondent has not discharged the onus they bear, the appellant need not have given evidence on the question as to whether or not his arrest was justified. It would have been sufficient, in my view, if he merely confirmed, in evidence, that he is the plaintiff and that he was arrested by Constable Maluleke. It is not required of him to prove lack of justification. Nothing can be said by an arrested person in such circumstances to cure defects in the Minister of Safety and Security's case, once the latter has failed to justify the arrest. In such circumstances, if a plaintiff gives evidence, trying to demonstrate that he or she was unjustifiably arrested, as happened in the instant case, the trial court cannot non-suit him or her on account of contradictions of the nature raised in the present case on the ' behalf. A discussion of applicable legal principles in cases of arrest without a warrant and some provisions the Constitution of the Republic of South Africa, 1996 ("the Constitution") should illustrate this point.
The Law

[16] The Constitution, which took over from the Interim Constitution (the Constitution of the Republic of South Africa, 200 of 1993), specifically stipulates, on the freedom and security of the person, as follows, in s 12(1)(a) and (b);
"12(1)       Everyone has the right to freedom and security of the person, which includes the right
(a)    not to be deprived offreedom arbitrarily or without just cause;
(b)    not to be detained without trial."

[17]   The importance of the freedom and security of the person is further illustrated in s 35(1)(f) of The Constitution, where the following is stated:
"35(1)       Everyone who is arrested for allegedly committing an offence has the right:
(f) to be released from detention if the interests of justice permit, subject to reasonable conditions." 

[19] Although s 40 of the Criminal Procedure Act has not been amended after the enactment of both the Interim Constitution and the Constitution, the interpretation thereof must, in my view, now be influenced by the provisions of the sections of the Constitution that I have mentioned, s 12(1)(a) and (b) and s 35 (1)(f), respectively. In this regard it must be borne in mind that, in s 2 of the Constitution, under the heading "Supremacy of Constitution", the following is enacted:

[22] In our country, with its history of the obnoxious detention without trial in political cases, the notion of a suspect being arrested and detained and then being simply released in court without much more is, to say the least, revolting. Section 35 of the Constitution contemplates three phases to be ordinarily undergone by a suspect who gets confronted by the police, viz., (a) lawful arrest, (b) lawful detention and (c) trial as an accused person.

paras [145]-[147].)

"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 s40 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 fide fear that a suspect will evade justice, then an arrest is obviously the correct option.

'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.'

[36] In the present case, it is clear that the only or primary purpose for arresting the persons found outside the Pick 'n Pay Supermarket, by Constable Maluleka and his colleagues, was to forestall their being involved in the commission of more serious crimes, which are usually committed by people who have committed lesser crimes, such as drinking or being drunk in public. I find it odd that one should be arrested, not so much for the "petty offence" he or she has allegedly committed, viz, drinking or being drunk in public, but merely because the lesser offence makes him or her a candidate for commission of a more serious offence, which he or she may commit. That object perhaps explains why the charge against the appellant was withdrawn at court. It was probably never the intention of the police to have him tried. 

[38] Another important consideration, in my view, apart from the appellant's liberty, is that prisons and police stations are filled with offenders or would-be offenders who should not have been incarcerated, in the first place. Pages 12 and 13 of the occurrence book, the "FIRST INFORMATION OF CRIME" book, concerning 14 December 2005, (which is on pages 40 and 41, respectively, of the paginated papers), for instance, contains no less than 22 names of persons who were incarcerated for either drinking or being drunk in public. In all probability, they are more than the number I give because the portion that indicates the purpose of detention, on page 14 of that, book is illegible. This consideration is not, however, the reason for my judgment. I merely point out the impropriety of filling police cells with so many petty offenders.

Quantum
[42] In view of his approach and his conclusion with regard to the appellant's claim, the Magistrate did not deal with quantum. Both counsel submitted, correctly in my view, that this Court is at large to deal with that aspect. Both counsel addressed the Court accordingly.

[46] I am of the view that, on the facts of the appeal before us, a similar award is justified. The appellant is an educated person. It is not stated what his level of education is, except that he worked for a firm of attorneys - his attorney, Andre Grobler's firm of attorneys. He, in all probability, has some high school education. He had been in such employment for ten (10) years as at the time of his arrest. He normally worked from about 16:30 to 17:00 and was arrested at about 18:30. He was in police custody until his release at court the next morning. It is common cause that he was refused permission to telephone his employer, after his arrest, and that he told constable Maluleka that he was supposed to go on duty the next morning. This demonstrates that he is a responsible person, who cares about his job and source income. He was locked and detained in a "holding cell", at the Sinoville Police station until the next morning. Conditions in police cells are notorious. Constable Maluleka has no personal knowledge of what happened after the appellant's incarceration. It is common cause, however, that he was taken to court, where the case against him was withdrawn.

[47] No details are given of the court proceedings, except that he was released at about 10:00. Counsel for the respondent could not say, before us, why the case was withdrawn. The appellant was, therefore, in custody for a minimum of fifteen (15) hours and thirty (30) minutes. Most of that time was spent inside the holding cell. The appellant had had no opportunity to inform his employer and next of kin about his predicament and what would happen to him the next day.

(d)	The appellants appeal against the Magistrate's order, dismissing his claim, succeeds;
(e)	
(f)	The appellant is awarded damages in the amount of R50, 000, 00, to be paid by the respondent;
(g)	The Magistrate's order that each party was to pay its own costs is set aside;
(h)	The respondent is ordered to pay
	(i) costs of the action for proceedings in the Magistrate's court; and
	 (ii) costs of this appeal.

J.N.M POSWA
JUDGE OF THE HIGH COURT

I agree

T.J RAULINGA
JUDGE OF THE HIGH COURT