---

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN     

CASE NO.  CA&R 188/2017

In the matter between:

MINISTER OF POLICE                                                                                          Appellant

and

LEERAN LE ROUX                                                                                           Respondent

APPEAL JUDGMENT

Bloem J.

[1] It is common cause that on 21 September 2010 and at Port Elizabeth the respondent was arrested without a warrant by a member of the South African Police Service whereafter he was detained until 23 September 2010.  He instituted action in the magistrate’s court for damages arising from his alleged unlawful arrest and detention.  He also claimed damages because of an alleged assault on him by some of the police officers who were present when he was arrested.  At the conclusion of the trial the magistrate dismissed his claim for damages based on the alleged assault.  The magistrate found that the appellant failed to justify the respondent’s arrest and detention and awarded him damages in the sum of R60 000.00 plus costs, such costs to include costs occasioned by the employment of counsel.  The appellant appeals against the finding that he did not justify the respondent’s arrest and detention.

[2] The appellant pleaded that the arresting officer, constable Anthony, was justified in terms of section 40 (1) (b) of the Criminal Procedure Act[1] to arrest and thereafter detain the respondent.  The appellant has now made an application that his plea and notice of appeal be amended to reflect that he also relies on section 40 (1) (a), (h) and (j).  The application was not opposed.    However, in the light of the reasoning set out hereunder and the conclusion at which we arrive, the amendments sought were unnecessary.  Accordingly the applicant must bear the costs occasioned by the application. 

[3] Section 40 (1) (b) reads as follows:

“A peace officer may without warrant arrest any person-

(a)      …;

(b)      whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody”.

[4] The jurisdictional facts for a defence in terms of section 40 (1) (b) are that firstly, the arrestor must be a peace officer; secondly, the arrestor must entertain a suspicion;  thirdly, the suspicion must be that the suspect committed an offence referred to in Schedule 1; and fourthly, the suspicion must rest on reasonable grounds.[2]  Because the liberty of an individual is interfered with when that individual has been arrested, the onus rests on a defendant to justify an arrest.[3] 

[5] It was not placed in dispute that constable Anthony was a peace officer.[4]  Two of the jurisdictional facts were placed in issue.  The first was whether or not the appellant showed that constable Anthony suspected that the respondent committed an offence referred to in Schedule 1.  The second issue is whether constable Anthony had reasonable grounds for the arrest.

[6] Constable Anthony’s evidence was that at all times material to this matter he was a member of the technical response team in Port Elizabeth.  That team was involved in the curbing of gangsterism in the northern areas of Port Elizabeth.  During the evening of 21 September 2010 and whilst on duty he received information over the radio, which was in the police vehicle in which he was travelling as a passenger, that members of the Fat Cats gang were shooting at members of another gang in Kobus Street, Port Elizabeth.  The further information was that a white twincab vehicle with a registration plate “PETER EC” was used in the shooting.

[7] Neither in the appellant’s plea nor during the evidence of constable Anthony was the offence referred to in Schedule 1, upon which the appellant relied, identified.  The information that he had received over the radio was of activity which amount to the commission of the offence of public violence.  Public violence consists in the unlawful and intentional commission, by a number of people acting in concert, of acts of sufficiently serious dimensions which are intended violently to disturb the public peace or security or to invade the rights of others.[5] 

[8] Can it be said that constable Anthony suspected that the respondent had committed public violence and that his suspicion was based on reasonable grounds?  To answer that question one needs to look at what information he had at his disposal when he arrested the respondent.  Before he set off to go to the scene of the shooting constable Anthony had information at his disposal firstly, that members of one gang were shooting at members of another gang in Kobus Street; and secondly, that a white twincab bakkie with the PETER EC registration plate (the bakkie) was used in the shooting.

[9] Upon arrival at the scene of the shooting in Kobus Street constable Anthony found neither any of the gang members nor the bakkie.  He and his colleagues patrolled the area and came across a bakkie which matched the description given to them earlier, except that the bakkie did not bear the PETER EC registration plates.  Constable Anthony testified that, in his experience, gang members change the registration plates of vehicles which had been involved in shooting incidents and other criminal activities.  They followed the bakkie and called for police back-up.  They followed the bakkie through parts of Port Elizabeth.  Shortly after the arrival of the back-up, constable Anthony decided to pull over the bakkie.  At that stage the vehicle in which he was travelling had its blue lights and siren on.  The bakkie pulled off onto the pavement.  He saw something being thrown from the left hand side of the bakkie and the bakkie turned as if it was making a u-turn.  However, the two police vehicles managed to get the bakkie to come to a standstill.  All the occupants of the bakkie, about nine of them, which included the respondent, were instructed to lie on the ground next to the bakkie, which they did.  Constable Anthony furthermore testified that firstly, he and a colleague walked approximately eight meters in the direction from which they were travelling where he discovered that what was thrown from the bakkie was a firearm; and secondly, that upon his return to the vehicles the bakkie was searched and the PETER EC registration plate was found in it.

[10] It is against the background of the above information that it must be decided whether or not constable Anthony had reasonable grounds for suspecting that the respondent had committed public violence.  To decide whether or not to arrest constable Anthony was entitled to take into account what he was informed over the radio as well as his personal knowledge that gang members change the registration plates of vehicles which were used during shooting incidents or other criminal activities.  He was also entitled to take into account the conduct of the persons in the bakkie shortly before it came to a standstill.  In this regard in Minister of Justice and others v Tsose[6] Malan J, when dealing with the power of a police officer to arrest a person who commits an offence in his presence, had the following to say:

"…in order to justify the apprehension and to determine whether or not a crime is being committed the arrestor should not be confined to what he perceives at the time of arrest but may import into his decision the antecedent conduct of the arrested person as well as his knowledge of all the relevant surrounding circumstances and thus supplement what is perceived by him.  He is not obliged to delve into the mental attitude or the mental processes or reservations of the person arrested.”

[11] In my view the above sentiments apply equally to the provisions of section 40 (1) (b).  The test to be applied is an objective one.  The enquiry is not whether constable Anthony subjectively suspected that the occupants of the bakkie were involved in the shooting incident.  It is whether a reasonable person in constable Anthony’s position who had the above information at his disposal would have considered that there were good and sufficient grounds for suspecting that the occupants of the bakkie, inclusive of the respondent, were involved in the shooting incident, thereby committing public violence.[7] 

[12] Mr Bands, counsel for the respondent, submitted that the information at constable Anthony’s disposal at the time of his arrest was insufficient for him to have entertained a reasonable suspicion that the respondent committed public violence.  He furthermore submitted that even if it could be found that constable Anthony entertained a reasonable suspicion that an offence referred to in Schedule 1 had been committed, he “could only reasonably suspect that one of the occupants was involved as only one gun was found.  It certainly would have been impossible for all ten occupants to fire one gun.”  Mr Beyleveld, counsel for the appellant, submitted that, based on the information at constable Anthony’s disposal, he had a reasonable suspicion that the respondent was one of those who were involved in the shooting incident which occurred in Kobus Street.

[13] The magistrate found that the grounds upon which constable Anthony based his suspicion “were not solid enough for the suspicion to be reasonable”.  She arrived at that finding firstly, because she found that, when the occupants of the bakkie were handcuffed, constable Anthony did not have information that the firearm and the vehicle were involved in the shooting incident; and secondly, because she looked at the respondent’s version that he was an innocent passenger who was given a lift by the driver of the bakkie who was known to him.  In my view the magistrate did not properly consider all the evidence when she made the above finding.  The undisputed evidence was that before he arrived at the scene of the shooting incident, constable Anthony had information that a white twincab bakkie with the PETER EC registration was involved in the shooting incident.  It is correct that at that stage he did not have information that the firearm, that was ultimately found, was involved in the shooting incident.  What the magistrate did not take into account was that the occupants of the bakkie were arrested after two important events had occurred.  The first was the discovery of the firearm not far from where the vehicles had stopped and the second was the discovery of the PETER EC registration plate and axe.  All those items were, before the firearm was thrown out, inside the bakkie.  The discovery of the registration plate made it reasonable for constable Anthony to have suspected that the bakkie was the same bakkie that was involved in the shooting incident.  The discovery of the firearm made it reasonable for him to have suspected that it was used in the shooting incident.  Had the magistrate taken the above factors into account she would have come to the conclusion that, viewed objectively, constable Anthony had sufficient information at his disposal to reasonably suspect that the occupants of the bakkie, inclusive of the respondent, were involved in the shooting incident. 

[14] In my view the magistrate arrived at the incorrect conclusion because she also took into account how, on the respondent’s version, he claimed to have landed in the bakkie.  That approach was incorrect because the test is whether constable Anthony entertained a suspicion which was reasonably entertained.  In my view, based on the above information at his disposal at the time when he arrested the respondent, constable Anthony reasonably suspected the respondent of having been involved in the shooting incident which constituted public violence, an offence referred to in Schedule 1 of the Criminal Procedure Act.  That being the case, constable Anthony was entitled in terms of section 40 (1) (b) of the Criminal Procedure Act to arrest the respondent without a warrant of arrest.

[15] Regarding his claim for unlawful detention, the respondent pleaded that his detention was not justifiable because there was no reasonable ground therefor as he “persistently professed his innocence and protested his continued detention.”  He testified that after his arrest he and the other occupants of the bakkie were taken to the Gelvandale police station where the police wanted to know from him inter alia from where he knew the other occupants of the bakkie.  He told them that he did not know the occupants of the bakkie and that he was merely given a lift.  From the Gelvandale police station they were taken to the Kabega Park police station where he was detained until his release.  The above evidence was challenged.

[16] It does not follow that a plaintiff’s detention, following a lawful arrest, is also lawful.  A policeman is of course entitled to arrest and thereafter detain a suspect for purposes of investigation.  However if the investigation reveals that the state is unlikely to prove the suspect’s guilt or there is nothing to gainsay the suspect’s exculpatory statement that he was not involved in the commission of the offence for which he was arrested, it is the duty of the policeman to release the suspect.  Failure to release the suspect under those circumstances will render his further detention unlawful.[8]

[17] In this case, following the respondent’s lawful arrest, his subsequent detention was also lawful until he informed the police that he had nothing to do with the shooting incident.  It must be accepted, in the absence of any evidence from the appellant, that there was no prima facie proof that the respondent was involved in the shooting incident. His detention was, from the time the he gave that exculpatory statement, accordingly unlawful.

[18] There is no appeal against the quantum of damages awarded by the magistrate.  In any event the parties are in agreement that the bulk of the damages awarded relate to the period of detention and that the declaration of the respondent’s arrest as being lawful should not materially affect the award of damages for unlawful detention.  In my view the sum of R60 000.00 for the respondent’s unlawful detention is appropriate.

[19] In the result, it is ordered that:

19.1.       The appeal succeeds insofar as the magistrate found that the respondent’s arrest was unlawful.

19.2.       The remainder of the appeal is dismissed.

19.3.       The appellant pay the respondent’s costs of the appeal, such costs to include the costs occasioned by the application for the amendment of the appellant’s plea and notice of appeal.

19.4.       The magistrate’s order is set aside and replaced with the following:

“1.          The plaintiff’s claim of unlawful arrest is dismissed. 

2.           The plaintiff’s detention from 21 to 23 September 2010 was unlawful.

3.           The plaintiff is awarded damages in the sum of R60 000.00 for his unlawful detention.

4.           The defendant shall pay the plaintiff’s costs of the action, such costs to include the costs occasioned by the employment of counsel, on appropriate tariff.”

_________________________

 

G H BLOEM

Judge of the High Court

 

 

BROOKS, J

 

 

I agree.

 

 

_________________________

 

R W N BROOKS

Judge of the High Court

 

For the appellant:                                Adv A Beyleveld SC, instructed by State Attorneys, Port Elizabeth and Whitesides Attorneys, Grahamstown.

 

For the respondent:                            Adv D S Bands, instructed by Swarts Attorneys, Port Elizabeth and Dullabh & Co, Grahamstown.                 

Date of hearing:                                  16 March 2018.

 

Date of delivery of the judgment:        20 March 2018.

---

---